Library Note

Delegated Legislation in the House of Lords since 1997

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2015)

summarises the general powers the House of Lords has in relation to delegated legislation:

The Parliament Acts do not apply to delegated legislation. So delegated legislation rejected by the

Lords cannot have effect even if the Commons have approved it. Neither House of Parliament

has the power to amend delegated legislation. The House of Lords has only occasionally rejected

delegated legislation.

It then refers to a resolution passed in 1994: “That this House affirms its unfettered freedom to vote on

any subordinate legislation submitted for its consideration”.

Some Members have argued that there is a convention that the House of Lords does not vote down

statutory instruments (SIs) that have been, or would be, approved by the House of Commons. Others,

however, have rejected the notion that such a convention exists. In recent years, procedure has been

reformed in order to facilitate Members to debate delegated legislation through non-hostile, neutral

motions. In practice, the ability to reject such instruments remains.

As the Companion notes, historically the Lords has rarely used the power to reject delegated legislation

(once in 1968, and four times in the period covered by this Note). In addition, on 26 October 2015, the

Government was defeated in the House of Lords after Members voted to support two amendments to

an approval motion, both of which sought to delay consideration of the Tax Credits (Income Thresholds

and Determination of Rates) (Amendment) Regulations 2015 until specific conditions had been met.

Following these votes, on 27 October 2015, the Government announced a rapid review to examine

“how to protect the ability of elected governments to secure their business”. The review, led by Lord

Strathclyde, was published in December 2015. He recommended a new procedure whereby the Lords

could “invite the Commons to think again when a disagreement exists and insist on its primacy”. The

procedure would be set out in statute. The House of Lords is to debate the Strathclyde Review on

13 January 2016.

This Library Note provides an overview of delegated legislation in the House of Lords since 1997. It

does this through a chronology of some of the notable debates in the House about the powers of the

Lords in this area and provides a summary of the key developments and reform proposals during this

period. It concludes with appendices giving statistics on divisions on delegated legislation.

Heather Evennett

5 January 2016

LLN 2016/001

Table of Contents

1. Background ................................................................................................................................................... 1

1.1 What is Delegated Legislation? ...................................................................................................... 1

1.2 Scrutiny of Delegated Legislation in the House of Lords ......................................................... 2

2. Delegated Legislation: Divisions and Defeats in the House of Lords since 1997 ......................... 4

2.1 Categorising Amendments .............................................................................................................. 4

2.2 Government Defeats on ‘Fatal’ Amendments ............................................................................ 7

2.3 Government Defeats on ‘Non-Fatal’ Amendments ................................................................ 12

2.4 Other Notable Government Defeats on Delegated Legislation .......................................... 15

3. Proposals and Debates about Lords Reform ...................................................................................... 19

3.1 Wakeham Commission (2000) .................................................................................................... 21

3.2 Merits of Statutory Instruments Committee (2003) ............................................................... 22

3.3 Joint Committee on Conventions (2006) .................................................................................. 22

3.4 New Procedure (2009) .................................................................................................................. 24

3.5 Lord Strathclyde-Lord Scott Correspondence (2010 ............................................................. 24

3.6 Working Practices Report (2011) ............................................................................................... 26

3.7 Reaction to House of Lords Reform Draft Bill (2011) ........................................................... 27

3.8 New Procedure (2011) .................................................................................................................. 28

3.9 Introduction of the Secondary Legislation Scrutiny Committee (2012) ............................. 29

3.10 Joint Committee on the Draft House of Lords Reform Bill (2012) .................................. 29

3.11 House of Lords Reform Bill (2012)........................................................................................... 30

3.12 Labour Peers Working Group (March 2014) ......................................................................... 30

3.13 Hansard Society Report (2014) ................................................................................................. 32

3.14 Strathclyde Review (2015) .......................................................................................................... 33

Appendix 1: Statistical Information, 1950–2015 ..................................................................................... 35

Appendix 2: Details of Divisions on Delegated Legislation, 1997–2015 ........................................... 39

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 1

1. Background

1.1 What is Delegated Legislation?

In their book How Parliament Works, Robert Rogers (now Lord Lisvane) and Rhodri Walters provide the following overview of delegated legislation:

Delegated legislation is law made by ministers or certain public bodies under powers

given to them by Act of Parliament but it is just as much part of the law of the land as

are those Acts. The volume of delegated legislation is huge, and this presents particular

challenges for parliamentary scrutiny.

Individual pieces of delegated legislation, often called secondary legislation to distinguish

them from primary legislation contained in Acts of Parliament, or subordinate legislation,

are found under many different names. They can be orders, regulations, Orders in Council,

schemes, rules, codes of practice and statutes (of certain colleges rather than in the sense

of Acts). Even the Highway Code is a form of secondary legislation.1

There are a number of different ways in which delegated legislation can be scrutinised by

Parliament. The parent Act, the Act of Parliament to which the secondary legislation relates,

will determine whether it is subject to parliamentary scrutiny and the form which that scrutiny

will take; some secondary legislation is not laid before Parliament and is not subject to any

parliamentary procedure, whilst some secondary legislation is subject to Commons-only

procedure and is not considered in the House of Lords.2

Where parliamentary scrutiny does occur an instrument is laid before Parliament, either in

draft form or after the instrument has been made. Scrutiny usually takes one of three main

forms, outlined in the House of Commons Library Standard Note, House of Commons

Background Paper: Statutory Instruments:

Instruments subject to negative resolution procedure

Such instruments become law unless there is an objection from either

the House of Commons or Lords

(i) The instrument is laid in draft and cannot be made if the draft is

disapproved within 40 days (draft instruments subject to the negative

resolution are few and far between).

(ii) The instrument is laid after making, subject to annulment if a motion to

annul (known as a ‘prayer’) is passed within 40 days.

Instruments subject to affirmative resolution procedure

These instruments cannot become law unless they are approved by

both Houses.

(i) The instrument is laid in draft but cannot be made unless the draft is

approved by both Houses (the Commons alone for financial SIs).

(ii) The instrument is laid after making but cannot come into force unless

and until it is approved

1 Robert Rogers and Rhodri Walters, How Parliament Works, March 2015, p 223. 2 In the case of instruments dealing with financial matters the instrument will be laid only before the Commons

(House of Commons Library, House of Commons Background Paper: Statutory Instruments, 18 December 2012, p 5).

2 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

(iii) The instrument is laid after making and will come into effect

immediately but cannot remain in force unless approved within a

statutory period (usually 28 or 40 days).

Other Procedures

(i) The instrument is required to be laid before Parliament after being

made but does not require parliamentary scrutiny.

(ii) The instrument is not required to be laid (and is therefore not subject

to parliamentary procedure).

There are also some order-making powers which are, in the parent Act, made subject to

‘special parliamentary procedure’. Not all of these are classified as statutory instruments.

It is important to note that SIs cannot, except in extremely rare instances where the parent Act

provides otherwise (such as the Census Act 1920), be amended or adapted by either House.

Each House simply expresses its wish for them to be annulled or approved, as the case may be.

The Civil Contingencies Act 2004 also provides for emergency regulations to be amended by

Parliament, but these regulations are not statutory instruments.3

In its 2014 report, The Devil is in the Detail: Parliament and Delegated Legislation, the Hansard

Society was critical of what it viewed as the complexity of parliamentary scrutiny procedures

for delegated legislation, noting: “There are no fewer than 16 variations on these procedures,

including 11 forms of strengthened procedure alone”, it concluded “the procedures are complex and often illogical, and many parliamentarians willingly admit they don’t understand

them”.4

1.2 Scrutiny of Delegated Legislation in the House of Lords

The House of Lords has several committees which are charged with examining delegated

legislation.5

The Delegated Powers and Regulatory Reform Committee (DPRRC) examines primary

legislation, a bill, before it becomes an Act to check “whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative

power to an inappropriate degree of parliamentary scrutiny”.6

The Secondary Legislation Scrutiny Committee (SLSC) is the successor to the Merits of

Statutory Instruments Committee, which was established in 2003 and existed until the end of

the 2010–12 session. The SLSC considers the policy merits of regulations and other types of

secondary legislation subject to parliamentary procedure; the Committee will consider all

statutory instruments which are subject to parliamentary procedure (negative and affirmative).

3 House of Commons Library, House of Commons Background Paper: Statutory Instruments, 18 December 2012,

pp 5–6. 4 Hansard Society, The Devil is in the Detail: Parliament and Delegated Legislation, November 2014, pp 3 and 5. For

more information see section 3.12. 5 For more information on scrutiny processes in the House of Commons please see: House of Commons Library,

House of Commons Background Paper: Statutory Instruments, 18 December 2012. 6 The Committee’s Terms of Reference are summarised on the Parliament UK website, ‘Delegated Powers and

Regulatory Reform Committee: Role of the Committee’, accessed 23 December 2015.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 3

Figure 1 below shows the number of statutory instruments considered by the SLSC by calendar

year.

Figure 1: Statutory Instruments considered by the SLSC by calendar year

Calendar Year Instruments considered by

the SLSC

2006 1112

2007 1168

2008 1102

2009 1129

2010 923

2011 728

2012 874

2013 945

2014 1087

The Committee reports on an SI within 12–16 days of it being laid before Parliament, to allow

time for any Member of the House to pursue the issues raised by asking a question or tabling a

motion for debate within the 40 day ‘prayer’ period for negative instruments. Affirmative

instruments have to be considered by the SLSC before they can be debated in House of Lords.

The Committee meets weekly when the House is in session and aims to publish reports of its

activities by the following week.7 Reports indicate statutory instruments that the Committee

has determined should be drawn to the attention of the House, including the reasons for that

decision—examples may be instruments are poorly drafted or inadequately explained; statutory

instruments which the Committee considers may be of special interest to the House, and

instruments which the Committee has considered and has determined that the special attention

of the House need not be drawn.8

In addition, members from the House of Lords also sit on the Joint Committee on Statutory

Instruments (JCSI) which considers legal drafting of statutory instruments after being laid in

Parliament. It has a ‘scrutiny reserve’: an affirmative SI cannot be debated in the House of Lords

until it has been cleared by the JCSI. The Committee meets most weeks that the Houses are in

session and issues reports on statutory instruments that the special attention of both Houses

should be drawn to, as well as those statutory instruments (both affirmative and negative)

which the Committee considered were not required to be reported to both Houses. JCSI

reports also list secondary legislation that is not subject to parliamentary procedure.9

Except in very limited circumstances, delegated legislation cannot be amended, and is usually

rejected or approved. In the period from 1997 there have been four government defeats on

motions in the House of Lords, which led to delegated legislation being rejected; these are discussed in more detail in the section below. The 2006 report by the Joint Committee on

Conventions provided the following detail on what happens to rejected legislation:

The Clerk of the Parliaments explains what happens if an SI is defeated. If it is

affirmative, it may be re-laid, though it must be at least slightly different. If it is negative,

7 Parliament UK website, ‘Secondary Legislation Scrutiny Committee’, accessed 23 December 2015. 8 In 2014, the Procedure Committee recommended two new grounds on which the Committee could draw the

special attention of the House to a statutory instrument (see: 5th Report of session 2013–14, 10 April 2014,

HL Paper 167 of session 2013–14, paras 1–2). 9 Parliament UK website, ‘Joint Committee on Statutory Instruments: Role’, accessed 16 June 2015.

4 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

it may be re-laid with a new title. If the Lords rejected it again (which has never

happened), the Government could in the last resort embody it in a Bill.10

In the example of the Government defeat on the amendment to the approval motion for the

draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1)

Order 2012 there was some discussion regarding the appropriate Government response to

that defeat. This is discussed further in section 2.3.

2. Delegated Legislation: Divisions and Defeats in the House of Lords

since 1997

This section provides details of the divisions on delegated legislation in the House of Lords

since 1997 which have resulted in Government defeats. As noted earlier, the Parliament Acts

do not apply to delegated legislation and the House has “unfettered freedom” to vote on any

subordinate legislation submitted for its consideration. In practice, however, the House of

Lords has only occasionally rejected delegated legislation. As well as providing information

about the circumstances of each defeat, this section also details the more general points raised

in these debates concerning the appropriate role of the House of Lords in considering

delegated legislation.

2.1 Categorising Amendments

Some of the divisions on delegated legislation in the Lords since 1997 have been attempts to

reject the legislation. These are often called ‘fatal’ amendments in that they have the effect of

withholding the House’s agreement. Other divisions have taken place on amendments that have

sought to place on record an objection to an SI, whilst stopping short of rejecting it altogether.

These are often called ‘non-fatal’ amendments. Both terms are informal and do not feature in

the Companion to the Standing Orders. Some of the different ways in which the Lords can express

opposition or concern about affirmative and negative instruments are detailed in paragraphs

10.14 and 10.09 of the Companion, although this is not an exhaustive list.

On 26 October 2015 the House agreed to two amendments to the motion to approve the Tax

Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. Both

amendments to the approval motion sought to delay consideration of the regulations until

certain conditions were met. The first amendment, moved by Baroness Meacher (Crossbench),

stated:

This House declines to consider the draft regulations laid before the House on 7

September until the Government lay a report before the House, detailing their response

to the analysis of the draft regulations by the Institute for Fiscal Studies, and considering

possible mitigating action.11

The amendment was agreed to by 307 votes to 277.

10 Joint Committee on Conventions, Conventions of the UK Parliament, November 2006, HL Paper 265-1 of

session 2005–06, p 60, para 2.18. 11 HL Hansard, 26 October 2015, cols 1033–4.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 5

The second amendment, moved by Baroness Hollis of Heigham (Labour), stated:

This House declines to consider the draft Regulations laid before the House on

7 September until the Government, (1) following consultation have reported to

Parliament a scheme for full transitional protection for a minimum of three years for all

low-income families and individuals currently receiving tax credits before 5 April 2016,

such transitional protection to be renewable after three years with parliamentary

approval, and (2) have laid a report before the House, detailing their response to the

analysis of the draft Regulations by the Institute for Fiscal Studies, and considering

possible mitigating action.12

The amendment was agreed to by 289 votes to 272.

There was some discussion regarding whether the two amendments could be accurately

defined as either fatal, in that they did not approve the regulations, or non-fatal, as they delayed,

or declined to consider, the regulations until certain conditions had been met, rather than rejecting them outright. As noted by the House of Commons Library:

This appears to have been the first time amendments have been passed to decline to

consider an instrument. 13

Tables in the appendices provide a breakdown of both divisions and defeats by parliamentary

session and calendar year and categorise them as being on either fatal or non-fatal motions; the

two defeats on the Tax Credits (Income thresholds and Determination of Rates) (Amendment)

Regulations 2015 have been categorised as delaying motions. In addition, Appendix 2 details

each division on delegated legislation in the House of Lords in the period 1997–2015.14

Defeats and divisions on delegated legislation should be considered in the context of its volume.

The Secondary Legislation Scrutiny Committee considers the policy merits of all statutory

instruments and other types of secondary legislation subject to parliamentary procedure.

Between the 2003–04 and 2014–15 sessions the Committee considered over 11,000 statutory

instruments. During this period there were divisions on 21 fatal motions, which led to two

Government defeats and a further 42 divisions on non-fatal motions, of which twelve were

Government defeats.15

12 HL Hansard, 26 October 2015, col 1038. 13 House of Commons Library, Conventions on the Relationship between the Commons and the Lords, 4 November

2015, p 4. 14 Up to 31 December 2015. 15 For information about the volume of delegated legislation in the House of Commons see: House of Commons

Library, Acts and Statutory Instruments: The Volume of UK Legislation 1950–2015, 22 December 2015.

6 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Figure 2: Defeats and Divisions on Delegated Legislation by Session since 2003–4

Session Instruments

considered by SLSC

Divisions Government Defeats

Fatal Non-Fatal Fatal Non-Fatal

2003–0416 657 2 3 0 0

2004–05 620 0 2 0 1

2005–06 1731 2 4 0 1

2006–07 1179 6 4 1 1

2007–08 1154 1 3 0 0

2008–09 1111 2 4 0 2

2009–10 660 4 5 0 4

2010–12

Double session 1147 1 7 0 0

2012–13 893 2 7 1 3

2013–14 998 0 2 0 0

2014–15 1153 1 1 0 0

Total 11,303 21 42 2 12

In the period from 1950–1999 there were 71 divisions on delegated legislation, resulting in ten

Government defeats, one of them fatal. This rate has increased since 1999 and there have been

91 divisions on delegated legislation, leading to 24 Government defeats, four of them fatal.

Professor Meg Russell, from the UCL’s Constitution Unit, has found some support for the

hypothesis that an enhanced sense of legitimacy created by the reforms of the House of Lords

Act 1999 has made the House of Lords more assertive.17 She notes, however, that assessing

legislative influence is “complex and multi-layered”,18 and should include an examination of both

the ability and willingness of the House of Lords to assert itself, and the way in which the

Government responds. Writing in 2010, she argued:

There were signs immediately after the 1999 reform that this would happen, when the

Conservative Leader in the Lords, Lord Strathclyde (1999), declared the convention on

secondary legislation ‘dead’. But this was not, as might have been expected, followed

through with a string of defeats. There was one defeat on secondary legislation in 2000,

on arrangements for the London Mayoral elections, and another in 2007, on the siting of

the Manchester ‘supercasino’. Visible change has therefore been limited. But it has been

enough to encourage government caution. At least once, over a measure to restrict trial by jury in 2005, the government has withdrawn a piece of secondary legislation (in this

case already tabled) in anticipation of defeat.19

16 The House appointed the Select Committee on the Merits of Statutory Instruments on 17 December 2003,

which commenced formally reporting on statutory instruments at the beginning of April 2004. For more

information see: House of Lords Merits of Statutory Instruments Committee, Special Report of Session 2003-04:

Review of the Work of the Committee, 29 November 2004, HL Paper 206 of session 2003–04. 17 Meg Russell, ‘A Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the

Lessons for Bicameralism’, Political Studies, 2010, vol 58, pp 866–85. 18 ibid, p 880. 19 ibid, pp 874–5.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 7

2.2 Government Defeats on ‘Fatal’ Amendments

As Tables 1 and 2 in Appendix 1 show, there have been 35 divisions on fatal amendments since

1997, on issues as diverse as the Human Fertilisation and Embryology (Mitochondrial Donation)

Regulations in February 2015 to the Norwich and Norfolk (Structural Changes) Order in

March 2010.

Since 1997 four of those 35 divisions have resulted in a Government defeat;20 two defeats on

the Greater London Authority Elections Orders (2000); a defeat on the Gambling

(Geographical Distribution of Casino Premises Licences) Order (2007); and a defeat on the

draft Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Government defeats on fatal amendments are discussed below.

Defeats on Greater London Authority Elections Orders (2000)

In 2000, following the House of Lords Act 1999, the Government was defeated on two pieces

of delegated legislation: the Greater London Authority Elections Rules Order and the Greater

London Authority (Election Expenses) Order. Lord Mackay of Ardbrecknish (Conservative)

moved an amendment to the election expenses order, declining approval of the Order and

calling upon the Government to lay another order giving candidates in the Greater London

Authority (GLA) elections one freepost delivery per household for campaign materials. No

provision had been made in the primary legislation for a freepost delivery. Lord Mackay also

moved a prayer to annul the order that set out the rules for the conduct of the GLA elections,

which could not go ahead unless the rules were approved.

With regard to its powers, Lord Mackay said the House was now more legitimately

empowered to vote against the Orders:

I want to examine the argument that somehow your Lordships’ House has no right to

deal with these matters. I refer first to the convention against voting on secondary

legislation. It was not a convention, but an agreement between the Labour and

Conservative Front Benches. It never included the Liberal Democrats, as no doubt they

will tell us, and it never included the Cross Benches.

Secondly, and much, much more important, is the fact that this is a new House. It is the

House that Tony built. It is the House governed by the Jay doctrine. Perhaps I may

remind your Lordships of what the noble Baroness the Lord Privy Seal said in the House

Magazine on 27 September last. She said: “The House of Lords… will be more

legitimate, because its members have earned their places, and therefore more effective”.

She went further in the Parliamentary Monitor in November of that year when she said:

“A decision by the House not to support a proposal from the Government will carry

more weight because it will have to include supporters from a range of political and

independent opinion. So the Executive will be better held to account”. If those words

from the noble Baroness mean anything, I hope that we shall have no complaint from

her if a combination of Conservative, Liberal Democrats, Cross-Benchers, and I even

hope a few Labour Peers, combine to hold the executive to account. That is what the

noble Baroness wants of her new House and I venture to suggest that is what she will

20 As at 31 December 2015.

8 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

get later this afternoon. Is it too much to ask the Government to listen to what your

Lordships are saying?21

This garnered support from across the House. Lord Goodhart (Liberal Democrat) noted that:

The power to reject secondary legislation must be exercised extremely cautiously. But

it is a power that can and should be exercised when it is really needed. Your Lordships’

House was once described as “Mr Balfour’s poodle”. Since the House of Lords Act last

year, the present House is no one’s poodle. In defence of democracy, your Lordships’

House should be not a poodle, but a Rottweiler.22

Lord Borrie (Labour) raised the wider issue of conventions on delegated legislation. Referring

to the Southern Rhodesia (United Nations Sanctions) Order rejected in 1968, he said that it

was not appropriate to reject the Order on the basis of what it did not do. He told the House:

“On grounds of constitutionality it is not appropriate for this chamber to turn down the nuts

and bolts detail of the election rules simply as a device to bring something new on to the

agenda”.23 Lord Simon of Glaisdale (Crossbench), who moved the resolution agreed to by the

Lords in 1994, “That this House affirms its unfettered freedom to vote on any subordinate

legislation submitted for its consideration”, contended that there was no convention that the

Lords did not reject delegated legislation.24

Lord Whitty, the then Parliamentary Under-Secretary of State, Department of the

Environment, Transport and the Regions, said that while the Government did not dispute the

House of Lords’ right to vote on delegated legislation, it did dispute accepting a motion which

called upon the Government to do something that it was not empowered to do by the relevant

primary legislation:

This is not the House of Lords behaving like the watchdog of the constitution. The

noble Lord, Lord Goodhart, put it better when he said that we are behaving like a

Rottweiler, an undisciplined and undisciplinable animal. That is not the role of the House

of Lords in any of our views of the future; and it should not be a role advocated by the

Front Bench of the Liberal Democrats. I am rather surprised that the noble Lord did so.

What is to stop my noble friend Lord Stoddart of Swindon, for example—I see that he

is not in his place—from moving to vote down secondary legislation on matters of

education on the grounds, for example, that he objects to the common agricultural

policy? Once we get into that territory, your Lordships are using one area of law, of

regulation, to vote down another. It amounts to an abuse of the proceedings of this

House and, I would say, leads us not only into very difficult territory but also territory

which—if the noble Earl, Lord Russell, were not about to jump to his feet and accuse

me of asperity of speech—I would suggest was close to a serious criminal offence.25

The amendment to the motion declining to approve the Greater London Authority (Election Expenses) Order was agreed by 215 votes to 150. The motion to annul the Greater London

Authority Elections Rules Order was agreed by 206 votes to 143.

21 HL Hansard, 22 February 2000, col 143. 22 ibid, col 147. 23 ibid, col 153. 24 ibid, cols 153–6. 25 ibid, col 174.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 9

The following month, Lord Dean of Harptree (Conservative) introduced a debate “for a power

of delay on statutory instruments”. Lord Dean introduced the subject by setting the wider

framework:

On 22 February of this year your Lordships decided by a substantial majority to reject

an affirmative order. In so doing, the House exercised its undoubted right. As the noble

and learned Lord, Lord Simon of Glaisdale, frequently reminds us, this power is rarely

used. I suggest to noble Lords that that vote was one of enormous parliamentary

significance and importance. It showed us clearly that the interim House had confidence

in its legitimacy.26

In winding up the debate, Lord Falconer of Thoroton, the then Minister of State, Cabinet

Office, stated that “the Government believe that there is, and should be, a convention that this

House does not reject secondary legislation”.27 Although he admitted that “procedurally […]

noble Lords have the power to do so”, he went on to argue that:

The unelected chamber should not be able to prevent the elected Government and

chamber from doing, as a matter of principle, what the other place decided to do.

This unelected chamber is not the equal of the elected chamber. Noble Lords opposite

are rather given to claiming that, now that the House is more legitimate than it

previously was, it has somehow acquired that right. That is nonsense. This House is

indeed more legitimate than it was because all of its Members have in one way or

another earned their place. But in democratic terms it is still not as legitimate as the

other place. Therefore, it is not right that it should exercise a power which actually sets

aside and makes of no effect the wishes of the other place on important issues of policy,

which decision cannot be reversed by the other place. This chamber is a scrutinising

chamber. That is accepted. It is not one where important matters of principle are to be

resolved as a matter of finality. 28

He added that he thought the fact that the House had developed non-fatal means of flagging

concerns on delegated legislation showed that the House recognised it does not reject

statutory instruments.29

Defeat on Regional Casinos (2007)

In March 2007, the House of Lords rejected the Gambling (Geographical Distribution of Casino

Premises Licences) Order; on the same day, almost simultaneously, the Order was approved by

the House of Commons.30 The Gambling Act 2005 provided for three new types of casino, and

the order specified their locations—eight small, eight large and one regional (or ‘super’) casino.

While most of the sites were uncontroversial, there were many objections to the choice of

location for the regional casino and the process by which it had been selected. Lord Clement-

Jones (Liberal Democrat) moved an amendment to the motion declining to approve the order.

26 HL Hansard, 29 March 2000, col 809. 27 ibid, col 838. 28 ibid, cols 840–1. 29 ibid, cols 840–1. 30 Hansard records that the House of Commons division approving the Order occurred at 6.41pm (HC Hansard,

28 March 2007, col 1598), the House of Lords division at 6.37pm (HL Hansard, 28 March 2007, col 1693).

10 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Several Members—including some who did not support the Order’s contents—expressed the

view that this was against the conventions of the House, Lord Mancroft (Conservative) stated:

The amendment of the noble Lord, Lord Clement-Jones, is of course fatal and, as such,

it pushes the conventions of your Lordships’ House to, and possibly beyond, its limits.

Indeed, it may well remind the Government and another place exactly what would

happen on a regular basis if this House were to flex the muscles given to it by

democratic election.31

While Lord Lispey (Labour) commented:

The time for the anti-gamblers to make their case was when [the Gambling Bill] was

before Parliament and they were trying to convince the Government not to go ahead

with it. What is not acceptable is that when an order under it comes forward—as it was

always envisaged one would come forward to name the casinos—the issue of principle

is re-opened. That is against the conventions of this House. That has been, as has been pointed out, broken on only two occasions since the 1970s, and it is not the right way

to carry forward that argument.32

Speaking in support of a non-fatal compromise amendment tabled by Baroness Golding

(Labour), Lord Howard of Rising (Conservative) said:

It does not break the normal conventions of this House, as the amendment in the name

of the noble Lord, Lord Clement-Jones, would have. With another place due to vote on

the issue shortly, and in the light of what the Minister has said, I do not think it

appropriate that your Lordships should overturn the Order outright. That would pre-

empt the other place and allow a decision on the issue to be clouded by questions about

the legitimacy of this House’s actions. 33

Lord Davies of Oldham, the then Deputy Chief Whip, speaking for the Government, echoed

Lord Howard of Rising’s point that the Lords should not overturn an order that the Commons

would approve:

[…] this House has its proper responsibilities as a revising chamber […] we must be

careful not to override the conventions of this House. We must recognise that the

other House is debating the Order, and while it is right and proper that the

Government are subject to scrutiny, it would be unfortunate if it were suggested that

the Order should be repudiated.34

The Liberal Democrats, however, rejected the notion that Lord Clement-Jones’ amendment

was breaking any convention. Lord McNally, Leader of the Liberal Democrats in the House of

Lords, argued that:

One time when we have the right to say no is when a committee of our House, which is

a whistle-blowing committee and is supposed to look at these issues for us, actually

31 HL Hansard, 28 March 2007, col 1671. 32 ibid, col 1675. 33 ibid, col 1687. 34 ibid, col 1688.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 11

blows the whistle. I pay tribute to the noble Lord, Lord Filkin, and his colleagues.35 It is

not the most thrilling or exciting of committees, but boy did it do its job this time—and

I pay tribute to it for that. We set up a committee like that and ask it to go through the

painstaking task of going through piece after piece of secondary legislation, then it

suddenly brings forward a stunner such as the report that the committee has made. To

say that the conventions of this House mean that we cannot do anything about it would

make me think hard about the worth of the Merits Committee. It is there to do a job

and, by gum, it has done it.36

Lord Clement-Jones’ amendment was carried by 123 votes to 120. Shortly after the Order had

been approved in the House of Commons, Tessa Jowell, the then Secretary of State for

Culture, Media and Sport, was notified on a point of order that the Government had been

defeated in the Lords. She emphasised that it was the wishes of the elected House which would

dictate the Government’s response to the defeat:

The Order has been carried in this elected House, but we understand that it has been lost by a small majority in the other place. Obviously Ministers will want to reflect on

the outcome of that vote and to come back to this elected House in due course for

proposals taking this policy forward and ensuring that the important objectives of the

legislation are considered.37

Defeat on Legal Aid, Sentencing and Punishment of Offenders Act (2012)

In the House of Lords, on 3 December 2012, the draft Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (Amendment of Schedule 1) Order 2012 was not approved. Lord Bach

(Labour) moved an amendment to the motion, declining to approve the draft Order on the

basis that:

It does not fulfil the undertaking given by Her Majesty’s Government on 17 April; and

will mean claimants, including a disproportionate number of disabled people, will not

receive legal help on a point of law in first-tier tribunals relating to welfare benefits thus

denying them a fair hearing on point of law cases.38

Speaking to his amendment, Lord Bach noted:

What I am doing with my Motion is to ask the Minister to withdraw the order that I

have prayed against—namely the Legal Aid, Sentencing and Punishment of Offenders Act

2012 (Amendment of Schedule 1) Order 2012—so that it can be reconsidered as a

fresh order when it is laid again. I am not seeking to go behind the Act of Parliament. I

still believe that many parts of it are entirely wrong and an enormous mistake, but

35 Lord Filkin chaired the then Merits of Statutory Instruments Committee, which was replaced by the Secondary

Legislation Scrutiny Committee in 2012. For more information about the Committee see sections 3.2 and 3.9 of

this Note. 36 HL Hansard, 28 March 2007, col 1682. 37 HC Hansard, 28 March 2007, col 1601. 38 HL Hansard, 3 December 2012, col 489. Lord Bach was referring a Government concession made in the House

of Commons on 17 April 2012 during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill

(HC Hansard, 17 April 2012, cols 200–90). Lord Bach did not feel that the draft Legal Aid, Sentencing and

Punishment of Offenders Act 2012 (Amendment to Schedule 1) Order 2012 reflected that concession, stating

“They [the Government] have come up with something much more vague; something that will happen in very, very

few cases”.

12 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

whether I like it or not, Parliament has passed it. It will come into force on 1 April 2013

and we will have to see what the consequences are, but that is not the point today.

There are two main grounds for my request for the order to be withdrawn and they

are linked together. If the order is not withdrawn, I will ask the House to decline to

support it. That is why my amendment can be described as fatal, although in my view it

is rather too emotive a term and is a somewhat misleading description because the

Government can always come back with something that is acceptable to the House. So-

called fatal amendments may be rare, but they are not that rare in this House. We have

had 27 since 2000 instigated by Peers of all parties and of none. Indeed, I am in good

company today in moving a fatal Motion because no one less than the Minister himself

moved one—some time ago, let it be said—and pressed it to a vote. I also feel more

content about moving a fatal Motion as I happen to have discovered that the Leader of

the House, who is not in his place at present, has also been known to support such

Motions in the past.39

Lord McNally, Minister of State for Justice, spoke against the amendment, noting “we have

argued our case through both Houses of Parliament and put an Act on to the statute book.

This is about implementing that Act”.40 He cautioned against the idea that by rejecting the

Order, the House could expect a “better offer”:

It is not a threat. I just do not want the House to make a decision on such an idea. This

is not the Committee stage of a Bill. The order relates to what is already an Act of

Parliament. If we do not bring forward another order in this area, the Act simply will go

through. I want the House to be aware of that fact.41

Lord Bach, rejected this argument, stating that:

There is a framework Act of Parliament, passed by Parliament, which I have never

sought to go behind. These orders add flesh to those bones. This is a very important

order. In any event, the Government would have to have some kind of order on these

matters. On this occasion, the Government have, in effect, not kept with the intention

that they certainly had in the House of Commons. By announcing what they did in the

Commons, they managed not to lose a vote and to get the Bill through. As a

consequence, it is a serious matter.42

Lord Bach’s amendment to the motion declining to approve the Legal Aid, Sentencing and

Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 was agreed to by

201 votes to 191. The issue was further discussed on 27 March 2013 (see section 2.3).

2.3 Government Defeats on ‘Non-Fatal’ Amendments

As the statistics in Appendix 1 show, since 1997 the House has sought to utilise procedures

available to it to place on record where it views there is a problem with an instrument, whilst

stopping short of rejecting it altogether. These are often called ‘non-fatal’ amendments.

39 HL Hansard, 3 December 2012, col 471. 40 ibid, col 487. 41 ibid, col 490. 42 ibid, col 490.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 13

Since 1997 there have been divisions on 57 non-fatal amendments resulting in 19 Government

defeats. In the 2015–16 session the Government has been defeated twice on non-fatal

amendments. Most recently in October 2015 on the Prosecution of Offences Act 1985

(Criminal Courts Charge) Regulations 2015 on a motion to regret.43

In the 2010–15 Parliament, the Government was defeated three times, with all three defeats

occurring on the 27 March 2013 and relating to legal aid. The first Government defeat, on the

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1)

Order 2013 was notable for its discussion of what should occur after a Government defeat on

a fatal motion. The amendment, moved by Lord Bach (Labour) inserted a statement of regret

to the motion of approval, stating:

But this House regrets that Her Majesty’s Government have responded to the opinion

of this House, as expressed in a vote on 3 December 2012 on a fatal motion in respect

of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of

Schedule 1) Order 2012 on inadequate provision for legal aid in first tier tribunal cases, by bringing forward this order which excludes even that limited provision.44

The amendment related to an earlier Government defeat, detailed above, held on 3 December

2012 on a motion by Lord Bach which declined to approve the Legal Aid, Sentencing and

Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. Introducing his

amendment Lord Bach stated:

Why is the Government’s behaviour so perverse? Why am I arguing that their line, not

to put forward another regulation, is so wrong? It is for two reasons. The first is the

constitutional offence that has been caused to Parliament. The Executive are supposed

to be subject to Parliament. Parliament’s wish that a more generous concession was

required was clearly expressed on 3 December; it cannot be more clearly expressed

than by a vote of a House of Parliament. The House voted for this.

The Government could have brought back their minor concession if they had wanted

to. For them to refuse to bring back anything else is—I choose my words with some

care—treating Parliament with contempt. It is saying to Parliament, “We are the

masters, not you. We don’t care what you say, we will do what we want”. I liken it to

the behaviour of a spoilt child who cannot get his way. The conduct is more that of a

playground bully than a mature, grown-up, confident, democratic Government. What

has happened here is dishonourable, and my amendment rejects this behaviour.45

Lord McNally, Minister of State for Justice, warning of the limitations of such motions noted:

If the Opposition Front Bench ever returned to this side of the House, they would be as

reluctant as we are to have reopened debate on the final settlements in any legislation

by the use of fatal Motions. I believe that that would prolong the issue and put pressure

on every Opposition to say, “The matter is not closed. You could pass a fatal Motion

and that will get us a better offer”. I do not think that is the way that government can

operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and

43 HL Hansard, 14 October 2015, cols 295–312. 44 HL Hansard, 27 March 2013, col 1086. 45 ibid, col 1088.

14 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

keeping up pressures which, quite frankly, Oppositions would eventually find difficult to

handle. The pressure groups, which quite legitimately keep the pressure on us, would

say, “Well, it is not closed now because you could pass a fatal Motion”. That is the

point. It is always flattering to suggest that, secretly, I do not agree with the decision,

but I actually do and in part because of my capacity as a business manager in this House.

I believe that we gave the House a clear understanding of the consequences. The House

took its decision, and that is how the Act is now set.46

In response Lord Bach commented:

The Minister is absolutely right about fatal Motions. They should be used sparingly. But

when such a Motion is passed by a House of Parliament, as was the case on 3 December

last year, it is incumbent on a democratic Government to take some notice of it rather

than just dismiss it. I pray in aid the last time it happened in this House on 28 March

2007, almost exactly six years ago, when the Labour Government’s gambling order was

defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision.47

This line of argument was something which Lord McNally refuted in the following exchange:

Lord McNally (Liberal Democrat): I am sorry to intervene and I do not want to

prolong the debate. However, as the noble Lord knows, I was intimately involved in the

passing of that fatal Motion, which stopped the super-casino going to Manchester. The

outcome of that Motion was that the Government did not bring back their proposal.

That is exactly what has happened again.

Lord Bach (Labour): No.

Lord McNally (Liberal Democrat): Oh yes; it is four-square. The House took a

decision and the decision stood. That was the case with the decision made on legal aid.

Lord Bach (Labour): I do not think that the Minister can really get away with that.

The Government changed their policy as a consequence of the House of Lords vote. On

this occasion, the Government have said, “We don’t like what the House of Lords have

said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However,

let us not retreat into history; let us talk about today.

If my amendment is agreed, the regulations presented by the noble Lord will go through,

of course, and the Act will come into force on 1 April in any event. However, if the

House agrees to the amendment, it will show that it has some distaste for the way in

which the Government have behaved in this instance. In my view, the Government have

not behaved well here and the House should, in its gentle way by a Motion of Regret,

just say that.48

The amendment to the motion was agreed to by 166 votes to 161.

46 HL Hansard, 27 March 2013, col 1092. 47 ibid, col 1096. 48 ibid, cols 1096–7.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 15

2.4 Other Notable Government Defeats on Delegated Legislation

On 26 October 2015, the Government was defeated in the House of Lords after Members

voted to support two amendments to an approval motion, both of which sought to delay

consideration of the Tax Credits (Income Thresholds and Determination of Rates)

(Amendment) Regulations 2015 until certain conditions were met. The regulations sought to

implement changes from April 2016 with regard to the income thresholds of Working Tax

Credits and Child Tax Credits.

Four amendments to the motion approving the regulations were tabled:

An amendment declining to approve the regulations tabled by Baroness Manzoor

(Liberal Democrat);

An amendment declining to consider the regulations until certain conditions were met,

tabled by Baroness Meacher (Crossbench);

An amendment declining to consider the regulations until certain conditions were met,

tabled by Baroness Hollis of Heigham (Labour); and

An amendment expressing regret at the regulations, tabled by the Bishop of Portsmouth.

Following debate, Baroness Manzoor’s amendment was defeated by 310 votes to 99. Baroness

Meacher’s amendment was agreed to by 307 votes to 277 and Baroness Hollis’s by 289 votes

to 272. The Bishop of Portsmouth’s amendment was not moved by reason of pre-emption.49

Debate on the Amendments

Opening the debate on the motion to approve the regulations, Baroness Stowell of Beeston,

the Leader of the House, noted that there had been “unprecedented focus on the passage of

secondary legislation through this House” in the lead up to the debate.50 She explained to Peers

the substance of the regulations and reasons the Government had laid them before Parliament.

With regard to the four amendments to the motion before the House, Baroness Stowell stated:

We as a Government do not support any of the amendments tabled to the Motion in

my name, but I am also clear that the approach the right reverend Prelate takes in his

amendment, by inviting the House to put on the record its concerns about our policy

and calling on the Government to address them without challenging the clear and

unequivocal decision made in the other place, is entirely in line with the long-standing traditions of your Lordships’ House.

The other three amendments take us into quite different and uncharted territory. All

three, in the names of the noble Baronesses, Lady Manzoor, Lady Meacher and Lady

Hollis, if agreed to, would mean that this House has withheld its approval of the

statutory instrument. That would stand in direct contrast to the elected House of

Commons, which has not only approved the instrument but reaffirmed its view on

Division only last week. It would have the practical effect of preventing the

49 HL Hansard, 26 October 2015, col 1034. 50 ibid, col 976.

16 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

implementation of a policy that will deliver £4.4 billion of savings to the Exchequer next

year—a central plank of the Government’s fiscal policy as well as its welfare policy. It is

a step that would challenge the primacy of the other place on financial matters.51

After taking a number of interventions from across the House, Baroness Stowell reiterated:

We have a choice. We must choose whether to accept or reject this statutory

instrument. Right now, it is absolutely clear that if we withhold our approval for this

statutory instrument, we will be in direct conflict with the House of Commons.52

Of the four amendments, Baroness Manzoor’s sought to reject the regulations by inserting the

words: “this House declines to approve the draft regulations laid before the House on

7 September”.53 In support of her amendment, she said:

Fatal Motions on regulations should be used incredibly sparingly. I wish that we were

not in this position but I cannot think of a better reason for this House to use such an option than the lives of 4.9 million children and the parents who go out to work to

support them. I have tabled this fatal Motion for a simple reason: when all is said and

done, and when the constitutional debate about the role of this House is over, I want to

be able to go home this evening knowing that I have done everything I could to stop this

wrong-headed and ill-thought through legislation, which will have such a damaging and

devastating impact on millions of people’s lives.

We have a duty in this House to consider our constitutional role but we also have a

duty to consider those affected by the decisions we make and the votes we cast. Were

there another way for this House to reject this proposal and send it back to the

Commons to reconsider, I would be all for doing so.54

Baroness Manzoor was dismissive of the idea that the financial privileges of the House of

Commons were at stake. She said:

Some people have said to me that this is a budgetary measure—indeed, the Leader of

the House said so, too—and therefore not within our competence. Were that true, the

Government had an opportunity to put these changes into the Finance Bill rather than

to use an affirmative statutory instrument, a measure that this House is explicitly asked

to consider and approve by the primary legislation from which it stems.55

Speaking in support of her own amendment, Baroness Meacher argued that, in reference to

Baroness Manzoor, “tabling a fatal amendment was a step too far” and that the purpose of her

amendment was “to support the democratic process and to avoid impeding it”.56 Baroness

Meacher’s amendment sought to insert the words that “this House declines to consider the

draft regulations laid before the House on 7 September until the Government lay a report

51 HL Hansard, 26 October 2015, col 979. 52 ibid, col 980. 53 ibid, col 982. 54 ibid, col 983. 55 ibid. 56 ibid, col 985.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 17

before the House, detailing their response to the analysis of the draft regulations by the

Institute for Fiscal Studies, and considering possible mitigating action”. She explained:

The House of Commons will have a cross-party debate and a vote on these issues on

Thursday. I understand that at least eight Conservative MPs have put their names to

Thursday’s Motion. It seems, therefore, that the Government no longer have a majority

in the House of Commons for the planned cuts as they stand. If we approve the

Regulations today, the Commons debate will have been pre-empted. This would

undermine the democratic process. If, however, the elected House supports the

Government—contrary to my expectations, I have to say—and the Government

present a report to your Lordships’ House responding to the Institute for Fiscal Studies

analysis, I am sure that I and others will support these Regulations. This will not

necessarily be because we agree with them—I most certainly do not—but because we

respect the democratic process and the limits of the duties of this wonderful House.57

In reference to whether the amendment was “unconstitutional”, Baroness Meacher explained that, having taken advice from the clerks, there was “no reason why we should not table a

delaying amendment”.58

Baroness Hollis of Heigham spoke to her amendment. This sought to insert the following

words into the approval motion:

[…] this House declines to consider the draft Regulations laid before the House on

7 September until the Government, (1) following consultation have reported to

Parliament a scheme for full transitional protection for a minimum of three years for all

low-income families and individuals currently receiving tax credits before 5 April 2016,

such transitional protection to be renewable after three years with parliamentary

approval, and (2) have laid a report before the House, detailing their response to the

analysis of the draft Regulations by the Institute for Fiscal Studies, and considering

possible mitigating action.

She explained the amendment in the following way:

We can amend Bills; we cannot amend SIs, yet often we do not know the Government’s

intent until we see the SI itself. We then face either a draconian fatal Motion or a

lamenting regret Motion that changes nothing, so instead this is a delaying amendment.

It is not fatal, as the Government know. It was drafted with the help of the clerks and it

calls for a scheme of transitional protection before the House further considers the SI.

Essentially, the cuts would apply to new claimants only. Frankly, that new SI could be

drafted in a week and implemented next April exactly as planned.59

With regard to issues concerning House of Commons financial privilege, Baroness Hollis was

also dismissive:

[…] if the Government wanted financial privilege, these cuts should be in a money Bill;

they are not. If they wanted the right to overturn them on the grounds of financial privilege, they could be introduced in the welfare reform Bill on its way here; they did

57 HL Hansard, 26 October 2015, col 985. 58 ibid, col 988. 59 ibid, col 991.

18 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

not. So why now should we be expected to treat this SI as financially privileged when

the Government, who could have made it so, chose not to do so? It is not a

constitutional crisis.60

The final amendment was that tabled by the Bishop of Portsmouth. In reference to his ‘regret’

amendment, the Bishop described it as “an alternative and an opportunity” for the House “to

register its disapproval of these proposals and its expectations that our reservations will be

addressed”.61

The debate that followed included contributions from across the House. Lord Mackay of

Clashfern (Conservative) felt that the Bishop of Portsmouth’s amendment was “by far the

safest” and that the others “mark a refusal to accept a decision of the elected House on a

matter of financial privilege as the final authority for it”.62 Baroness Thomas of Winchester

(Liberal Democrat) referred to the House’s “unfettered right over statutory instruments” and

said that it was “time we stopped being bullied over how we consider statutory instruments”.

She urged the House to “stand up for what we believe to be morally right”.63 Lord Lawson of Blaby (Conservative) described himself as “torn”. He explained that while he felt the

constitutional position, as set out by Lord Mackay, was “very clear” he said he believed that

there were “aspects of this measure which need to be reconsidered and, indeed, changed”.64

Lord Butler of Brockwell (Crossbench) argued that a combination of factors before the House

in this matter meant “it would be beyond the House’s constitutional powers to defeat the

Government”.65 Lord Richard (Labour) spoke to reject the idea that financial privilege was at

stake. He echoed arguments made in this regard and felt that Lady Hollis’s amendment was

“not a fatal attack upon these regulations”. Were the House to support it, he argued, “We

would get the best of both worlds”.66 Baroness Hayman (Crossbench) described “delaying an SI

rather than killing it” as “innovative”.67 She observed that “if we have the power to kill a

statutory instrument and send it back to base, surely we have the power to delay it and wait for

reconsideration”. She said that while she accepted the Commons had discussed the issue three

times, the regulations needed further consideration.

For the Opposition, Baroness Smith of Basildon stated that it was “unusual to make such major

changes in secondary legislation” and that had the Government chosen to make those changes

by primary legislation “we would not be here today”.68 She said that Baroness Hollis’s

amendment was “the common-sense, practical approach” as the “onus is then on the

Government to take the proposals away and reconsider”. She explained:

If they are committed to doing something, the Government can bring new proposals to

your Lordships’ House or choose to bring forward new primary legislation. However, if

they failed to bring anything back at all, it would mean that they could not proceed with

these cuts, would have to look for another route and would have to reconsider their

policy. No Government ever have the wisdom such that they are right all the time. This

60 HL Hansard, 26 October 2015, col 991. 61 ibid, col 996. 62 ibid, col 998. 63 ibid, col 1004. 64 ibid, cols 1004–5. 65 ibid, col 1006. 66 ibid, col 1011. 67 ibid, col 1016. 68 ibid, col 1020.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 19

House is right to ask the other place and the Government to reconsider, to pause and

to try to get it right.69

In respect of the effect of Baroness Hollis’s amendment, Baroness Smith contended:

We have been very clear: this is not a fatal amendment; it does not totally block the

Government’s plans; it allows them to reconsider. Although we do not have the right to

pass a fatal amendment, we have a moral and constitutional duty to scrutinise, examine

and challenge and, when a Government have clearly got it wrong, to ask them to think

again.

Responding for the Government, Earl Howe, the Deputy Leader of the House, noted that it

was in the “rarest of circumstances” that the House “vote[s] down or block[s] secondary

legislation”. These rare circumstances, he contended, “do not include this situation”.70 After

taking a number of interventions, Earl Howe concluded his comments by stating that:

For the House to withhold its consent to the regulations today would, in my

submission, mean overruling the House of Commons on an issue which that House has

already expressed its view on three times. In other words, it would mean doing what

this House has not done for more than 100 years, which is to seek to override the

primacy of the House of Commons on a financial matter. So I say respectfully to the

noble Baronesses, Lady Manzoor, Lady Hollis and Lady Meacher, that there is a right

way and a wrong way to challenge government policy on a matter of this kind. This is

the wrong way. The right way is to table an amendment such as the one in the name of

the right reverend Prelate—not that I support it, but that is the proper way of doing

it—or at a suitable opportunity to table an amendment to primary legislation. Indeed, a

Bill is coming to us shortly, the Welfare Reform and Work Bill, which would enable

noble Lords to do exactly that, should they so choose.

My contention is this. The measures in these regulations form a central plank of the

programme on which the Government were elected to office in May. It is a programme

that has been in the public domain for a long time. However, even if it was not and even

if these were policies dreamt up by the Chancellor overnight, I respectfully say to your

Lordships that this House, under its conventions, should not reject statutory

instruments or seek to overturn the primacy of the other place on a matter of very

sizeable public expenditure.71

3. Proposals and Debates about Lords Reform

Since 1997, Lords reform has largely centred on the issue of composition, rather than powers.

The Labour Party fought the 1997 general election on a manifesto that said it would propose

no changes to the powers of the House of Lords. A common thread through the various

reform documents published by the Labour governments was that reforming the powers of the

second chamber was unnecessary. This was because there was enough legislation and

convention to regulate the relationship between the House of Commons and a reformed

House of Lords. For example, the 2007 white paper praised the conventions that helped

regulate the relationship between the two Houses. This included the convention that the

69 HL Hansard, 26 October 2015, col 1021. 70 ibid, col 1027. 71 ibid, cols 1029–30.

20 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

second chamber does not usually reject secondary legislation. It noted: “We make clear that we

are proceeding on the basis that we would wish to see the current conventions survive into a

new House”.72

The 2008 white paper went further:

[…] the current powers of the House of Lords and the conventions that underpin them

have worked well. The second chamber is likely to be more assertive, given its electoral

mandate. The Government and members of the Cross-Party Group welcome this.

Increased assertiveness is compatible with the continued primacy of the House of

Commons, which does not rest solely or mainly in the fact that the House of Commons

is an elected chamber whilst the House of Lords is not. Instead it rests in the

mechanisms identified above. There is therefore no persuasive case for reducing the

powers of the second chamber”.73

However, the paper struck a note of caution with regard to delegated legislation: “The cross-party discussions raised a number of issues in relation to the arrangements for secondary

legislation that the group considered could be taken forward as part of the process of

Parliamentary reform more generally”.74 This represented a change from the Government’s

position in 2001, where it had agreed with the recommendations of the Wakeham Commission

to change the delegated legislation powers of the House (see section 3.1).

There was broad continuity in the Coalition Government’s approach. In answer to a written

question from Lord Stoddart of Swindon about the Government’s plans to reform the second

chamber’s powers, Lord McNally said: “The Government believe that the basic relationship

between the two Houses, as set out in the Parliament Acts 1911 and 1949, should continue

when the House of Lords is reformed”.75 The publication of the white paper and the draft Bill in

May 2011 (Cm 8077) confirmed this view (see section 3.7).

On 26 October 2015, the Conservative Government was defeated in the House of Lords after

Members voted to support two amendments to an approval motion, both of which sought to

delay consideration of the Tax Credits (Income Thresholds and Determination of Rates)

(Amendment) Regulations 2015 until specific conditions had been met. Following these votes,

on 27 October 2015, the Government announced a rapid review to examine “how to protect

the ability of elected governments to secure their business”.76 The review, led by Lord

Strathclyde, was published in December 2015. He recommended the creation of a new

procedure whereby the Lords could “invite the Commons to think again when a disagreement

exists and insist on its primacy”. The procedure would be set out in statute.77

Since 1997 there have been a number of developments concerning delegated legislation and the

powers of the House of Lords, including the publication of reports that have considered the

powers the current House has and those that a reformed House should have. These are

described below.

72 HM Government, The House of Lords: Reform, February 2007, Cm 7027, para 4.16. 73 Ministry of Justice, An Elected Second Chamber: Further Reform of the House of Lords, July 2008, Cm 7438, para 5.1. 74 ibid, para 5.1. 75 HL Hansard, 24 June 2010, col WA206. 76 See House of Lords, Written Statement: Strathclyde Review, 17 December 2015, HLWS285 for terms of

reference. 77 Cabinet Office, Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons, 17 December

2015, Cm 9177, p 5.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 21

3.1 Wakeham Commission (2000)

The Royal Commission on Reform of the House of Lords chaired by Lord Wakeham reported

its recommendations in January 2000.78 In its chapter on delegated legislation, the Commission

noted that “the powers of the present House of Lords in respect of statutory instruments are

more absolute than those it has in respect of primary legislation”.79 Published before the two

defeats in February 2000 (see section 2.2), it added however that “there has since 1968 been

no serious challenge to the convention that the House of Lords does not reject statutory

instruments. Its influence over secondary legislation is therefore paradoxically less than its

influence over primary legislation”.80 The report gave the following assessment of the Lords’

powers:

On the face of it the present arrangements give the second chamber some powerful

weapons. It can refuse to approve draft instruments (under the affirmative procedure)

or strike down instruments already made (under the negative procedure).These powers

should enable the second chamber to bring irresistible pressure to bear on the

Government. But they are too drastic. That is the reason why they are not in practice

used now and we would not suggest that a reformed second chamber should be more

willing than the present House of Lords to persist in blocking an instrument

altogether.81

The report concluded that “The absolute nature of the House of Lords’ powers in relation to

secondary legislation is more apparent than real”. The Commission made several

recommendations for changing the second chamber’s powers over delegated legislation:

Recommendation 41: Where the second chamber votes against a draft instrument,

the draft should nevertheless be deemed to be approved if the House of Commons

subsequently gives (or, as the case may be, reaffirms) its approval within three months.

Recommendation 42: Where the second chamber votes to annul an instrument, the

annulment should not take effect for three months and could be overridden by a

resolution of the House of Commons.

Recommendation 43: In both cases the relevant Minister should publish an

Explanatory Memorandum, giving the second chamber an opportunity to reconsider its

position and ensuring that the House of Commons is fully aware of all the issues if it has

to take the final decision.82

In the 2001 white paper, House of Lords Reform—Completing the Reform the then Labour

Government concurred with the Wakeham Commission’s recommendation. It said:

While a reduction in the nominal power to reject Statutory Instruments absolutely, this

change will in practice render the Lords more effective in assuring the quality of

secondary legislation, since the House will be able to point out flaws and urge some

recasting of the terms of a Statutory Instrument, without rejecting it outright. This

78 Royal Commission on Reform of the House of Lords, A House for the Future, January 2000, Cm 4534. 79 ibid, para 7.31. 80 ibid. 81 ibid, para 7.33. 82 ibid, para 7.37.

22 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

provides a parallel power to that in main legislation enabling the Lords to ask, through

delay, the Government to reflect again, but ultimately not to frustrate a legislative

proposal endorsed by the Commons.83

3.2 Merits of Statutory Instruments Committee (2003)

In light of the growing volume and importance of statutory instruments, the Wakeham

Commission also recommended that a sifting mechanism (either a joint committee of both

Houses, or a mechanism in the second chamber) should be established to look at the

significance of every instrument subject to parliamentary scrutiny and to draw attention to

those which merited further debate or consideration (Recommendations 37 and 38).

Following this, in April 2002, a group established by the Leader of the House to consider how

the working practices of the House of Lords could be improved recommended that “a new

Lords select committee should be established to examine the merits of every Statutory

Instrument subject to parliamentary scrutiny”.84 The House agreed the terms of reference for a

new Merits of Statutory Instruments Committee in June 2003.85 See section 3.9 for information

as to the Committee’s further development.

3.3 Joint Committee on Conventions (2006)

The Joint Committee was set up in May 2006, chaired by Lord Cunningham of Felling (Labour),

to consider “the practicality of codifying the key conventions on the relationship between the

two Houses of Parliament which affect the consideration of legislation”, including conventions

on delegated legislation.86 The Committee was asked to accept the primacy of the House of

Commons in doing so. Chapter 6 laid out the Committee’s examination of the conventions on

delegated legislation. The Joint Committee concluded this assessment by stating that “the

House of Lords should not regularly reject Statutory Instruments, but that in exceptional

circumstances it may be appropriate for it to do so. This is consistent with past practice, and

represents a convention recognised by the opposition parties”.87 It added: “There are situations

in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with

Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI”.

It listed these as:

Where special attention is drawn to the instrument by the Joint Committee on

Statutory Instruments or the Lords Select Committee on the Merits of SIs;

When the parent Act was a “skeleton Bill”, and the provisions of the SI are of

the sort more normally found in primary legislation;

Orders made under the Regulatory Reform Act 2001, remedial Orders made under the Human Rights Act 1998, and any other Orders which are explicitly of

83 HM Government, House of Lords Reform—Completing the Reform, November 2001, Cm 5291, para 33. 84 Report from the Leader’s Group appointed to consider how the working practices of the House can be

improved, and to make recommendations, April 2002, HL Paper 111 of session 2001–02, para 31(d). 85 HL Hansard, 16 June 2003, cols 527–9. 86 Joint Committee on Conventions, Conventions of the UK Parliament, 6 November 2006, HL Paper 265-I of session

2005–06, p 3. 87 ibid, para 227.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 23

the nature of primary legislation, and are subject to special “super-affirmative”

procedures for that reason;

The special case of Northern Ireland Orders in Council which are of the nature of primary legislation, made by the Secretary of State in the absence of a

functioning Assembly;

Orders to devolve primary legislative competence, such as those to be made

under section 95 of the Government of Wales Act 2006; and

Where Parliament was only persuaded to delegate the power in the first place on the express basis that SIs made under it could be rejected.

The Committee concluded that: “The problem with the present situation is that the Lords’

power in relation to SIs is too drastic. The picture would be very different if Parliament had

power to amend SIs”.88

In the debate that followed, Lord Cunningham noted the limits to the application of the report.

He said its conclusion could only apply to the interim House of Lords. He argued:

[…] the reality [is] that a substantially changed House—particularly one with an

electoral mandate—would, of necessity, want to re-examine its working practices. It

would feel, given the backing those elections would give it, that it would have every right

to do so. Speaking as a politician, I would never want to be elected to any institution, at

any level, where I could not have some say in how that institution behaved and

conducted its business. I do not suppose that even the ingenuity of party lists can come

up with clones from all the political parties who would simply come here to accept the

status quo. That is not the reality of political life. Sadly, we would also see the demise of

the Cross Benches, to say nothing of the Bishops. Consideration of those powers and

responsibilities would inevitably be on the agenda.89

The Government’s response to the report accepted the Committee’s recommendations and

conclusions. With regard to delegated legislation the Government agreed with the Committee’s

opinion that “the Lords should only threaten to reject Statutory Instruments (SIs) in

exceptional circumstances”, adding that:

The Government welcomes the Committee’s conclusion that the opposition parties

should not reject an SI simply because they disagree with it. It is important to remember

that the power to create SIs, and the principles behind the primary legislation will

already have been debated and considered by both Houses of Parliament. It goes

without saying that it is at any time open to Parliament to change the primary legislation. The Government believes this principle should apply even in relation to the types of SI

referred to in the Committee’s conclusion 17. Simply because a special procedure is

required for particular SIs should not mean that the Lords can feel free to reject the

88 Joint Committee on Conventions, Conventions of the UK Parliament, 6 November 2006, HL Paper 265-I of session

2005–06, para 229. 89 HL Hansard, 16 January 2007, cols 581–2.

24 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Order on the grounds it dislikes the policy, if the Order has in fact been properly made

under the procedure set out.90

The Government said it hoped to see the conventions carry on in a reformed second chamber.

However, it stated: “The Government will consider carefully whether any legislative changes in

relation to secondary legislation are necessary, but hopes that they are not”.91

3.4 New Procedure (2009)

In 2009, the House approved a report by the Procedure Committee to amend the Standing

Orders to provide Members with a mechanism to enable there to be ‘neutral’ debates on

negative instruments. The report said:

We have considered a proposal by Baroness Thomas of Winchester for a new

procedure to enable negative instruments to be debated on a neutral “take note”

motion. At present such instruments are normally debated on overtly hostile motions,

either “fatal” (ie a “prayer” to annul the instrument) or “non-fatal” (ie a critical motion

or a motion calling upon Her Majesty’s Government to revoke the instrument).

Baroness Thomas of Winchester suggests that a “take note” motion should, where

appropriate, include a reference to the relevant report of the Merits of Statutory

Instruments Committee.

We support this proposal, which reflects the fact that Members of the House may well wish on

occasion to debate the issues raised by a negative instrument, and to scrutinise Government

policy, without wishing to appear to oppose the instrument itself.92

The Committee noted that this procedure was “not intended to replace the existing

procedures whereby a prayer to annul a negative instrument may be tabled, or the House may

be invited to agree some other substantive motion, such as a resolution calling on Her

Majesty’s Government to revoke the instrument”. The Committee explained:

Instead we recommend that where a neutral “take note” motion has been tabled with

regard to an instrument, but another Member then tables a prayer or some other

substantive motion on the same instrument, the motion inviting a decision of the House

should take precedence. The Member tabling the second motion should, as a matter of

courtesy, consult the Member who has previously tabled the “take note” motion, but

we are clear that the House should under no circumstances be deprived of its right to

consider a substantive motion on secondary legislation.93

3.5 Lord Strathclyde-Lord Scott Correspondence (2010)

In a letter to Lord Strathclyde, the then Leader of the House, on 20 July 2010, Lord Scott of

Foscote (Crossbench) enquired about Lord Strathclyde’s recent assertion at a Crossbench

meeting that “it had become an important convention of the House that the House would not

90 HM Government, Government Response to the Joint Committee on Conventions’ Report of Session 2005–06:

Conventions of the UK Parliament, December 2006, Cm 6997, para 39. 91 ibid, para 47. 92 House of Lords Procedure Committee, Rotation Rule, Debating Negative Instruments, Select Committee Powers,

February 2009, HL Paper 39 of session 2008–09, para 4. 93 ibid, para 10.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 25

vote down a statutory instrument”.94 In addition Lord Scott also asked whether it was possible

for the House to have the power to suggest revisions to, and be able to delay, delegated

legislation.

In reply, on 29 July 2010, Lord Strathclyde suggested this idea should be forwarded to the

review of working practices. He also confirmed in his letter it was the Coalition Government’s

view that a convention not to reject delegated legislation existed. He accepted the House has a

power to reject such legislation but reiterated the Government’s belief that a convention

existed that limited its use. He added:

The reasons why this convention has developed are manifold. The Parliament Acts do

not apply to delegated legislation. Accordingly, delegated legislation rejected by the

House of Lords cannot have effect even if the House of Commons has approved it. By

contrast to procedures for primary legislation, there is no mechanism for a dialogue

between the two Houses in relation to Statutory Instruments, nor is there much scope

for such dialogue as each House only has the power to veto the instrument (save for the very small number of cases where the Parent Act specifically provides for

amendment).

The rejection of secondary legislation would, moreover, jar with the House of Lords’

role as a revising chamber: outright defeat of a Statutory Instrument cannot be classed

as revision.

On 23 September 2010, Lord Scott wrote in reply:

I agree with you that the rejection by the House of secondary legislation that the

Commons has approved might, as you say, jar with the House’s role as a revising

chamber. But that would surely only be so if the ground of rejection were on an issue of

policy. If the rejection had been on a drafting point, giving rise to a question whether the

instrument would achieve its intended purpose, or whether it would have an effect that

was not intended, it seems to me that the rejection would be entirely consistent with

the House’s role as a revising chamber. The instrument in question would have to go

back to the sponsoring Department, which would have to consider the points raised in

the Lords and either relay the instrument in a suitably amended form or explain why the

questions raised in the Lords were thought to be misconceived and relay the instrument

in its original form. I am sure it is necessary to have some form of procedure that would

enable the Lords, or the Merits Committee, to revise secondary legislation as it can

revise primary legislation.

On 20 October 2010, Lord Goodlad (Conservative), in his capacity as (then) Chair of the

Merits Committee, wrote to Lord Strathclyde to ask for formal confirmation of the

Government’s position. Lord Strathclyde answered on 30 October 2010 that the Government

accepted the conclusions of the Joint Committee on Conventions but added:

It is right that the House has the power to defeat SIs. It is a potential constitutional

safeguard. But the House has a number of powers that it rarely exercises. It may reject

94 All of the correspondence detailed is included in this section is detailed in the report by the Merits of Statutory

Instruments Committee, Correspondence: Local Land Charges (Amendment) Rules 2010, 21 October 2010,

HL Paper 40 of session 2010–12, Appendix 5.

26 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

a supply Bill that is not certified as a money Bill, but has long stayed its hand. I propose

no change in that.

On SIs, as I observed to Lord Scott, the House normally chooses to support a non-fatal

motion. That is in my personal view tantamount to a convention; this was illustrated in

the case of the recent Royal Parks Regulations, when the House opposed a fatal motion,

but supported a non-fatal one on the same subject. It was also illustrated on 22 March in

the case of the Norwich and Norfolk and Exeter and Devon Structural Changes Orders,

when the House rejected fatal amendments to the approval motions for the two

Orders, but supported non-fatal amendments to the same motions. Where the House

has departed from this custom, the episodes were clearly not the norm. Indeed, their

rarity suggests the convention to which I referred has proved highly robust over the

decades, and the House has rightly exercised—as both Labour and Conservative parties

chose to in opposition—the utmost restraint in using its power to reject.95

3.6 Working Practices Report (2011)

A Leader’s Group, chaired by Lord Goodlad, was appointed in July 2010 to “consider the

working practices of the House and the operation of self-regulation; and to make

recommendations”.96

The Group identified scrutiny of legislation, including delegated legislation, as one of the House

of Lords’ core functions, and noted that both the volume and importance of delegated

legislation has continued to grow. It judged that: “The House of Lords has good reason to be

proud of the quality of its scrutiny of delegated legislation”.97 However, the group questioned Lord Strathclyde’s assertion about the existence of a convention that the House of Lords does

not reject statutory instruments that the House of Commons has, or would have, approved.

Pointing out that the Commons last rejected a statutory instrument in 1979, and that this may

even have been by mistake, the Leader’s Group argued that:

[…] such a convention, linked as it is to the decisions of the House of Commons, which

has not rejected a SI in over 30 years, would be tantamount to a convention that

Parliament as a whole does not reject Statutory Instruments. This would defeat the

purpose of subjecting SIs to parliamentary control in the first place.98

Although the House of Lords has typically exercised self-restraint in rejecting delegated

legislation, the Leader’s Group believed that the power to vote against a statutory instrument,

and force the Government to think again, was “an efficient and valuable form of scrutiny”.99 The

Group endorsed the spirit of the proposal made by the Wakeham Commission in 2000 that a

reformed second chamber should possess a non-fatal, delaying power in respect of SIs, noting

that:

If the House’s powers over secondary legislation were less draconian, the House might

be encouraged to use them more often, forcing the Government to rethink its policy

95 Merits of Statutory Instruments Committee, Conventions of the House Relating to Secondary Legislation,

11 November 2010, HL Paper 52 of session 2010–12, Appendix 1. 96 HL Hansard, 27 July 2010, col WS147. 97 Report of the Leader’s Group on Working Practices, HL Paper 136 of session 2010–12, April 2011, Chapter 3,

para 142. 98 ibid, para 147. 99 ibid, para 150.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 27

and possibly to amend the proposed legislation. An apparent sacrifice of the House’s

powers might lead to more effective scrutiny. We also consider that such an approach

would be more consistent with the House’s role as a revising chamber ultimately

respecting the primacy of the House of Commons.100

However, primary legislation would be required to implement such a change. The Leader’s

Group therefore recommended that the House should adopt a resolution setting out a new

convention:

We recommend that the House should adopt a resolution asserting its freedom to vote

on delegated legislation, and affirming its intention to use such votes to delay, rather

than finally to defeat, such legislation. Such a resolution would establish the House’s role

as a revising chamber in respect of delegated as well as primary legislation.

We recommend that the resolution should contain the following elements:

That the House asserts its freedom to decline to approve any draft affirmative

instrument, or to pass a prayer to annul any negative instrument, laid before it by

the Government;

That the purpose of the House’s use of this power is to enable the Government

of the day to reconsider the policy set out in the instrument;

That in the event that the House has declined to approve an affirmative

instrument, and the Government has laid a substantially similar draft instrument,

and this instrument has been approved by the House of Commons, the House

will agree to the approval motion without amendment;

That in the event that the House has passed a prayer to annul a negative

instrument, and the Government has laid a substantially similar instrument, the House will not vote on a prayer to annul the second instrument.101

3.7 Reaction to House of Lords Reform Draft Bill (2011)

In May 2011, the Coalition Government published its House of Lords Reform Draft Bill.102

Neither the draft Bill nor the accompanying white paper specified any changes to the second

chamber’s role in scrutinising or passing secondary legislation, but in the subsequent debate on

the draft Bill, several Members brought up points relating to delegated legislation.

The white paper stated that: “The Government believes that the powers of the second chamber and, in particular, the way in which they are exercised should not be extended and the

primacy of the House of Commons should be preserved”.103 This was questioned during the

debate, as some Members argued that, when it comes to secondary legislation, the House of

Commons does not have primacy—Baroness Thomas of Winchester (Liberal Democrat) noted

100 Report of the Leader’s Group on Working Practices, HL Paper 136 of session 2010–12, April 2011, Chapter 3,

para 152. 101 ibid, paras 27–8. 102 HM Government, House of Lords Reform Draft Bill, May 2011, Cm 8077. 103 ibid, p 11.

28 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

the Lords’ “unfettered power over most delegated legislation”,104 and Lord Hunt of Kings

Heath (Labour) said that the Lords formally had “equal status in approving delegated

legislation”.105 While Lord Hunt accepted that in reality “the formal position has come to be

moderated by conventions reflecting the primacy of the Commons”, he believed that “the

moment that elected Members walk into this chamber, those conventions will evaporate”.

Lord Williamson of Horton (Crossbench) and Lord Brooke of Alverthorpe (Labour) agreed

with him that an elected second chamber would be more assertive about challenging the

Government on statutory instruments than the House of Lords as currently composed. Lord

Williamson said:

Our references—oh so discrete references—to ping-pong would need to be changed to

kung-fu, or all-in wrestling, or some other phrase that would better describe the

relationship between the two Houses, at least on primary legislation.

I think that that would extend also to subsidiary, secondary legislation […] What do we do? We pass Motions of regret, and I vote for them—but what [impact] do they have?

They have the impact of a feather duster. If the new House of Lords were largely

elected, some at least of those SIs would be challenged or, more probably, simply

deleted.106

Lord Brooke of Alverthorpe observed:

The noble Lord, Lord McNally, knows himself what you can [do] with an SI in this

House: you can have a fatal vote on an SI and you can change completely a government

policy—as indeed Members in this House did on the Gambling Bill when they threw out

the SI. When you have elected people in the chamber, can you leave the freedom for

them to do that? In no time you will be in trouble.107

3.8 New Procedure (2011)

The procedure for rejecting delegated legislation in the Lords was updated again in July 2011. A

Procedure Committee report recommended a facility for reasons to be added to prayers to

annul negative instruments.108 The Committee said:

We believe that it would be helpful to Members and to the Government if reasons

could be appended to prayers to annul negative instruments. However, we emphasise

that it is for ministers to decide how to exercise powers delegated to them by

Parliament, subject to whatever form of parliamentary control is set out in the primary

legislation. A prayer to annul a negative instrument, if agreed to, is final and irreversible.

The reasons added to such a motion should be just that—reasons explaining why it has

been tabled. It would be undesirable, and indeed constitutionally inappropriate, for

further conditions or requirements to be added to the motion, for instance calls that

the Government should take certain steps before re-laying the instrument.109

104 HL Hansard, 21 June 2011, col 1207. 105 HL Hansard, 22 June 2011, col 1371. 106 ibid, cols 1284–5. 107 ibid, col 1352. 108 House of Lords Procedure Committee, 6th Report, 8 July 2011, HL Paper 170 of session 2010–12. 109 ibid, p 3.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 29

The report was agreed by the House on 19 July 2011.110

3.9 Introduction of the Secondary Legislation Scrutiny Committee

(2012) On 26 March 2012, the Procedure Committee recommended that the title and terms of

reference of the Merits of Statutory Instruments Committee should be changed to reflect the

Committee’s new responsibility for scrutiny of public bodies orders. The change had been

requested following a letter from Lord Goodlad, then Chair of the Merits of Statutory

Instruments Committee, to the Chairman of Committees, which stated:

As you know, the Merits Committee has recently taken on a new function scrutinising

public bodies orders under the procedures laid out in the 2011 Public Bodies Act. As a

result of our discussions about our working practices and how we would approach this

new scrutiny role, I am writing to seek the Procedure Committee’s approval to rename

the Committee with effect from the start of the next session as the “Secondary

Legislation Scrutiny Committee”; and to make two small changes to the Committee’s

Terms of Reference.

The Merits of Statutory Instruments Committee (or the “Merits Committee” as it is

usually known) was named to reflect its original terms of reference: to consider

instruments and draft instruments laid before the House with a view to determining

whether or not to draw the instruments to the special attention of the House; or in

shorthand, to look at the “merits of statutory instruments”. This specific phrase appears

only in paragraph (5) of our Terms of Reference which gives the Committee the ability

to undertake general enquiries.

In carrying out our new role of scrutiny of public bodies orders we take a different

approach to that taken on other delegated legislation. We do not look at the “merits”

of public bodies orders, rather we are tasked with assessing such orders against a series

of statutory tests set out in the 2011 Public Bodies Act and deciding whether to trigger

the enhanced scrutiny procedure. We also take the view that the title “Merits

Committee” is not altogether helpful in explaining publicly the role the Committee plays

in the scrutiny of a wide range of statutory instruments and other items of delegated

legislation which it falls to us to consider. The Committee chose the name Secondary

Legislation Scrutiny Committee as transparent and easy to explain.111

The report was agreed to by the House on 24 April 2012.112

3.10 Joint Committee on the Draft House of Lords Reform Bill (2012)

The Joint Committee on the Draft House of Lords Reform Bill was appointed by the House of

Commons on 23 June 2011 and by the House of Lords on 6 July 2011 to examine the Draft

110 HL Hansard, 19 July 2011, col 1201. 111 House of Lords Procedure Committee, Merits of Statutory Instruments Committee, 26 March 2012, HL Paper 283

of session 2010–12, p 4. 112 HL Hansard, 24 April 2012, col 1684.

30 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

House of Lords Reform Bill and report to both Houses by 27 March 2012. Its report, Draft

House of Lords Reform Bill, noted:

At the heart of the controversy around the draft Bill lies the effect of electing a

reformed chamber on current constitutional arrangements and, in particular, the

balance of power between the two Houses. At present the House of Lords has a wide

range of powers over legislation—it can initiate, amend and reject bills […] The House

of Lords also has the capacity to reject delegated legislation.

Because the House of Lords is not elected, however, these powers are used very

sparingly indeed. If the House chose to use its powers it would be one of the most

powerful second chambers in the world. The restraint it presently exercises, as a

consequence of its nonelected status, is expressed in the conventions which govern

relations between the two Houses.

The issue therefore is how the practice of the Lords will change once it is elected—whether a reformed house will continue exercise restraint and whether the conventions

will survive in their current form.113

During the Committee’s inquiry, several commentators suggested introducing additional

statutory provision emphasising the primacy of the House of Commons.114 One proposal for

achieving this was by replacing of the power of the Lords to reject statutory instruments with a

power to delay. The Committee rejected this option, citing evidence from David Beamish,

Clerk of the Parliaments, about its “workability and practical effects”.115

3.11 House of Lords Reform Bill (2012)

The House of Lords Reform Bill received its first reading in the House of Commons on 27 June

2012. It included no references to chamber’s role in scrutinising or passing secondary

legislation. The Bill failed to proceed through its stages in the House of Commons and did not

reach the House of Lords.116

3.12 Labour Peers Working Group (March 2014)

In March 2014, the Labour Peers’ Working Group published A Programme for Progress: The

Future of the House of Lords and its Place in a Wider Constitution. The report examined the issue of

reform of the House of Lords, and included recommendations regarding the powers of the

Lords to reject delegated legislation:

We recommend that the House of Lords agrees proposals to enable the tabling of a

motion deferring further consideration of a particular secondary measure for three

months, which would require the Government to reflect upon the arguments against

113 Joint Committee on the Draft House of Lords Reform Bill, Draft House of Lords Reform Bill, 23 April 2012,

HL Paper 284-1 of session 2010–12, p 5. 114 ibid, pp 20–1. 115 ibid, p 21. 116 The House of Lords Reform Bill received its second reading in the House of Commons on 9 and 10 July 2012;

for more information see: House of Lords Library Note, House of Lords Reform 2010–15, 25 March 2015.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 31

the measure, and if necessary to reconsider it. This would replace the present power to

reject such legislation completely.117

A subsequent debate on the report was held in the House of Lords on 19 June 2014 on the

motion to ‘take note’. Introducing the report the co-chair of the working group, Baroness

Taylor of Bolton (Labour) noted:

We also make a proposal about secondary legislation in this House because the current

situation of “accept or reject” causes a great deal of frustration. We therefore suggest

that there should be a three-month deferral opportunity so that Members can make the

Government think again when there is serious concern about an SI.118

During a wide ranging debate the House examined proposals for the size of the House and its

composition. Lord Dubs (Labour) welcomed the proposal to introduce delaying powers to

consideration of statutory instruments:

All of us when in opposition have wrestled with disliking an order and not wishing, as an

unelected House, to actually kill it; we have all had that difficulty. So a three-month

delay period would be sensible. 119

These sentiments were echoed by Lord Hunt of Kings Heath, Shadow Deputy Leader of the

House of Lords, who noted:

The irony is that we have an absolute veto on secondary legislation but we hesitate to

use it because we are not elected. Giving ourselves a delaying power—I think that we

need to pick up the issue of amendments—would give the House far greater scrutiny

powers in relation to secondary legislation.120

Lord Rooker (Labour) proposed giving the second chamber the power to amend secondary

legislation, commenting “If we give the second chamber powers to amend SIs, I think we should

remove the right to reject a statutory instrument in exchange, so there is a quid pro quo”.121

Lord Phillips of Sudbury (Liberal Democrat) also suggested the Lords should have a greater

power to amend secondary legislation, stating:

We should do more to make our oversight of secondary legislation, which is much

greater in volume than primary legislation, more effective. Our inability to amend

secondary legislation is weird. Is there another legislature in the world that prevents

such amendments? It was only dreamt up to prevent the House of Lords being an

obstruction to the smooth passage of Commons legislation, but that is not good

enough. In fact, some noble Lords may not know that it is possible to put in primary

legislation a provision that allows amendment of secondary legislation to be built on the

back of that primary legislation. It has happened in only six or 10 statutes—I remember

the India Act of the 1920s, for example. We should put in all major legislation, under

which huge powers are left to secondary legislation, a power for Parliament to amend it.

117 Labour Peers’ Working Group, A Programme for Progress: The Future of the House of Lords and its Place in a Wider

Constitution, March 2014, p 6. 118 HL Hansard, 19 June 2014, col 926. 119 ibid, col 938. 120 ibid, col 983. 121 ibid, col 943.

32 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

I also agree with the proposal for a three-month delay, which need not be at the

expense of rejecting a piece of secondary legislation altogether. We have done that only

half a dozen times in our history.122

3.13 Hansard Society Report (2014)

In November 2014, the Hansard Society published a report, The Devil is in the Detail: Parliament

and Delegated Legislation. The report detailed the delegated legislation process and explored

how delegated legislation evolved as it progressed through each of the Houses of Parliament; it

concluded:

How Parliament deals with this legislation is unsatisfactory. The way in which delegation

and its scrutiny is treated is neither systematic nor consistent.123

With reference to the House of Lords the report noted that:

The House of Lords has the greatest influence on delegated powers and legislation—

particularly through the Delegated Powers and Regulatory Reform Committee

(DPRRC)—but voluntarily blunts that influence by its reluctance to reject SIs. Its

committees are more engaged in the process, more influential with government, and

Peers generally have more appetite for the detail and technical scrutiny required than do

MPs.124

The report recommended an independent inquiry into the legislation making process for both

primary and secondary legislation. Were an inquiry not held, the report suggested a number of areas where reforms could be considered to “ameliorate the problems with delegated

legislation”.125 The suggested reforms included:

The House of Lords should make greater, albeit judicious, use of its power of veto in

the future, particularly in respect of any SIs emerging from framework legislation that

cannot be effectively scrutinised at the primary bill stage. This would be in keeping with

the House of Lords’ revising function and its power of delay […]

The remit of the Delegated Powers and Regulatory Reform Committee should be

changed so that it can report on bills immediately, when they begin their passage

through one of the Houses, whether that be Lords or Commons. This would push at

the commonly understood boundaries of bi-cameral scrutiny and require an increase in

committee resources, but it would ensure that the House of Commons is better

advised on the nature of delegated powers in bills than is the case at present […]

The House of Commons should observe the ‘scrutiny reserve’ that exists in the House

of Lords in relation to decisions of the Joint Committee on Statutory Instruments (JCSI).

The House should not debate an SI before the Committee has concluded its

deliberations on an instrument.126

122 HL Hansard, 19 June 2014, col 978. 123 Hansard Society, The Devil is in the Detail: Parliament and Delegated Legislation, November 2014, p 3. 124 ibid, p 7. 125 ibid, p 8. 126 ibid, p 9.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 33

3.14 Strathclyde Review (2015)

On 26 October 2015, the Government was defeated in the House of Lords after Members

voted to support two amendments to an approval motion, both of which sought to delay

consideration of the Tax Credits (Income Thresholds and Determination of Rates)

(Amendment) Regulations 2015 until certain conditions were met. On 27 October 2015, the

Government announced a rapid review to examine “how to protect the ability of elected

governments to secure their business”.127 The same day a motion in the Lords was narrowly

defeated which would have annulled the Electoral Registration and Administration Act 2013

(Transitional Provisions) Orders 2015.128

The Strathclyde Review: Secondary Legislation and The Primacy of the House of Commons, published

on 17 December 2015, aimed “to consider how more certainty and clarity could be brought”

to the passage of statutory instruments through Parliament. It included background information

about statutory instruments, their scrutiny in Parliament and relations between the two

Houses. Lord Strathclyde noted that although “in the course of my deliberations, I have

received many letters with ideas on composition of the House of Lords […] this issue did not

form part of the Terms of Reference of my review [and] I have not commented on them”; he

pointed to work currently being undertaken by the Lord Speaker, Leaders from several political

parties in the Lords and the Campaign for an Effective Second Chamber on these issues.129

The review suggested three options which might “provide the House of Commons with a

decisive role on statutory instruments”:

Option one proposed the removal of the House of Lords from the statutory instrument procedure altogether. This had the benefit of providing simplicity and clarity.

However, it was argued that the proposal would “be controversial and would weaken

parliamentary scrutiny of delegated legislation and could make the passage of some

primary legislation more difficult”.130

Option two proposed maintaining the role of the House of Lords in relation to

statutory instruments but sought to “codify the convention” on House of Lords powers. In this option the House, either in a resolution or in standing orders, would make clear

“the restrictions on how its power to withhold approval or to annul should be

exercised in practice and to revert to a position where the veto is left unused”. The

review stated that “agreement would have to be reached on what the resolution should

say, and that would not be straightforward in the light of an apparent absence of

consensus on what the convention currently requires”.131

It concluded that a resolution of the House could be superseded, or standing orders

could be suspended, by further decisions of the House, and argued that past experience

had demonstrated “that no agreement on vague principles contained in a resolution of

127 Nigel Morris and Charlie Cooper, ‘Tax Credits: David Cameron Announces Urgent Review of House of Lords’

Powers’, Independent, 27 October 2015. 128 HL Hansard, 27 October 2015, cols 1095–1136. 129 Cabinet Office, Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons, 17 December

2015, Cm 9177, p 22. 130 ibid p 5. 131 ibid, p 17.

34 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

the House could safely be relied on in future”.132 The review therefore concluded that

option two “would not provide certainty of application”.133

Option three would create a procedure whereby the Lords could “invite the Commons to think again when a disagreement exists and insist on its primacy”. The

procedure would be set out in statute.134

The report recommended the third option, arguing that this would allow the Government

certainty and “preserve and enhance the role of the House of Lords to scrutinise secondary

legislation by providing for such legislation to be returned to the Commons. In the event of a

further Commons vote to approve a statutory instrument, it would enable the Commons to

play a decisive role”.135 The report also recommended that “in order to mitigate against

excessive use of the new process” the Government should take steps to ensure that primary

legislation contains “the appropriate level of detail and that too much is not left for

implementation by statutory instrument”.

In addition, the report proposed a further review, with the involvement of the House of

Commons Procedure Committee, to consider the circumstances where statutory instruments

should be subject to Commons-only procedures, “especially on financial matters, with a view to

establishing principles that can be applied in future”.

Further information, and reaction to the review’s recommendations, can be found in the House

of Lords Library, Strathclyde Review: Secondary Legislation and the Primacy of the House of

Commons (23 December 2015).

132 Cabinet Office, Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons, 17 December

2015, Cm 9177, p 18. 133 ibid, p 5. 134 ibid, p 5. 135 ibid, p 5.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 35

Appendix 1: Statistical Information, 1950–2015

Table 1: Number of Divisions on Delegated Legislation by Calendar Year, 1950–

2015

(up to 31 December 2015)

Fatal

Motion

Non-Fatal

Motion

Total

1950

1951

1952

1953

1954

1955 1 1

1956

1957

1958 1 1

1959

1960

1961

1962

1963 1 1 2

1964

1965 2 2

1966 2 2

1967 2 2

1968 1 1

1969 1 1

1970

1971

1972 1 1

1973 2 2 4

1974

1975

1976

1977 1 2 3

1978 1 1 2

1979 3 3

1980 6 6

1981 1 1

1982 2 2

1983 1 1

Fatal

Motion

Non-

Fatal

Motion

Delaying

Motions

Total

1984 1 1

1985 2 2

1986 2 2

1987

1988

1989

1990 1 1

1991 1 1

1992 1 1 2

1993 3 3

1994 2 3 5

1995 3 4 7

1996 6 3 9

1997 1 1

1998 1 1 2

1999

2000 2 2

2001 5 3 8

2002 1 1

2003 2 7 9

2004 2 3 5

2005 2 2

2006 3 3 6

2007 5 4 9

2008 1 3 4

2009 2 5 7

2010 5 5 10

2011 5 5

2012 1 3 4

2013 1 5 6

2014 3 3

2015 4 4 2 10

Total

1950–

2015

75 85 2 162

This table excludes one division in 1967 where there was no quorum in the Chamber (a second

division on the order was held two days later), one division in 2002 where there was no

quorum in the Chamber, and a prayer to annul a set of regulations in 1999 which was negatived

on question with no division. In addition, a duplicate division from November 2003 is excluded,

as is a July 2009 division on a group of delegated legislation and a December 2010 division on a

general motion. An amendment to a motion to annul, moved by Lord Kennedy of Southwark

on 27 October 2015, is excluded, as the vote related to an amendment to the motion to annul,

rather than to the statutory instrument itself.

For more details please see Appendix 2.

36 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Table 2: Number of Divisions on Delegated Legislation since 1997 by Parliamentary

Session

(up to 31 December 2015)

Session Fatal Motion Non-Fatal

Motion

Delaying Motion Total

1997–98 2 1 3

1998–99

1999–00 2 2

2000–01 4 1 5

2001–02 1 3 4

2002–03 2 6 8

2003–04 2 3 5

2004–05 2 2

2005–06 2 4 6

2006–07 6 4 10

2007–08 1 3 4

2008–09 2 4 6

2009–10 4 5 9

2010–12 1 7 8

2012–13 2 7 9

2013–14 2 2

2014–15 1 1 2

2015–16 3 4 2 9

Total

1997–98–2015–16 35 57 2 94

This table excludes one division in 1967 where there was no quorum in the Chamber (a second

division on the order was held two days later), one division in 2002 where there was no

quorum in the Chamber, and a prayer to annul a set of regulations in 1999 which was negatived

on question with no division. In addition, a duplicate division from November 2003 is excluded,

as is a July 2009 division on a group of delegated legislation and a December 2010 division on a

general motion.

An amendment to a motion to annul, moved by Lord Kennedy of Southwark on 27 October

2015, is excluded as the vote related to an amendment to the motion to annul, rather than to

the statutory instrument itself.

For more details please see Appendix 2.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 37

Table 3: Number of Government Defeats on Delegated Legislation by Calendar

Year, 1950–2015

(up to 31 December 2015)

Fatal

Motion

Non-Fatal

Motion

Total

1950

1951

1952

1953

1954

1955

1956

1957

1958

1959

1960

1961

1962

1963

1964

1965

1966

1967

1968 1 1

1969

1970

1971

1972

1973

1974

1975

1976

1977 1 1

1978 1 1

1979

1980

1981

1982

1983 1 1

Fatal

Motion

Non-

Fatal

Motion

Delaying

Motion

Total

1984

1985 1 1

1986

1987

1988

1989

1990

1991

1992 1 1

1993 2 2

1994

1995 1 1

1996

1997

1998 1 1

1999

2000 2 2

2001

2002

2003 4 4

2004

2005 2 2

2006

2007 1 1 2

2008

2009 3 3

2010 3 3

2011

2012 1 1

2013 3 3

2014

2015 2 2 4

Total

1950–

2015

5 27 2 34

This table excludes a Government defeat by Baroness Hanham on 13 July 2009. An amendment

to the motion to annul, moved by Lord Kennedy of Southwark on 27 October 2015, is also

excluded, as the vote related to an amendment to the motion to annul, rather than to the

statutory instrument itself.

For further information please see Appendix 2.

38 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Table 4: Number of Government Defeats on Delegated Legislation since 1997 by

Parliamentary Session

(up to 31 December 2015)

Session Fatal Motion Non-Fatal

Motion

Delaying Motion Total

1997–98 1 1

1998–99

1999–00 2 2

2000–01

2001–02

2002–03 4 4

2003–04

2004–05 1 1

2005–06 1 1

2006–07 1 1 2

2007–08

2008–09 2 2

2009–10 4 4

2010–12

2012–13 1 3 4

2013–14

2014–15

2015–16 2 2 4

Total

1997–98 to 2015–16 4 19 2 25

This table excludes a Government defeat on a motion by Baroness Hanham on 13 July 2009. An

amendment to a motion to annul, moved by Lord Kennedy of Southwark on 27 October 2015,

is also excluded, as the vote related to an amendment to the motion to annul, rather than to

the statutory instrument itself.

For further information please see Appendix 2.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 39

Appendix 2: Details of Divisions on Delegated Legislation, 1997–2015 (up to 31 December 2015)

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 4 November 1997

Earl Russell

(Liberal

Democrat)

1997–98 Social Security

(Lone Parents)

(Amendments)

Regulations 1997

Prayer to annul

Contents 48

Not contents

100

Labour 27 January 1998

Lord Willoughby

de Broke

(Conservative)136

1997–98 Beef Bones

Regulations 1997

Motion to

resolve, to

revoke

Contents 207

Not contents

97

Government

defeat

Labour 23 July 1998

Lord Ackner

(Crossbench)

1997–98

Conditional Fee

Agreements

Order 1998

Amendment to

motion, to

withdraw

Contents 24

Not contents

55

Labour 18 February 1999

Baroness Blatch

(Conservative)

1998–99 Education

(School

Performance

Information)

(England)

(Amendment)

Regulations 1998

Prayer to annul

Motion

negatived, no

division137

Labour

22 February 2000

Lord Mackay of

Ardbrecknish

(Conservative)

1999–00 Greater London

Authority

(Election

Expenses) Order

2000

Amendment to

motion of

approval, to

decline

Contents

215

Not Contents

150

Government

defeat

136 Lord Willoughby de Broke became a member of the UK Independence Party in 2007. 137 Baroness Blatch tried to withdraw the motion, Lord Lucas objected; the motion was then negatived without

division, see HL Hansard, 18 February 1999, cols 823–30.

40 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 22 February 2000

Lord Mackay of

Ardbrecknish

(Conservative)

1999–00 Greater London

Authority

Elections Rules

2000

Motion to annul

Contents

206

Not Contents

143

Government

defeat

Labour 22 January 2001

Lord Alton of

Liverpool

(Crossbench)

2000–01 Human

Fertilisation and

Embryology

(Research

Purposes)

Regulations 2000

Amendment to

motion of

approval, to

decline

Contents

92

Not Contents

212

Labour 29 January 2001

Baroness Young

(Conservative)

2000–01 Prescription only

Medicines

(Human Use)

Amendment

(No. 3) Order

2000

Prayer to annul

Contents

95

Not Contents

177

Labour 8 February 2001

Lord Dixon-Smith

(Conservative)

2000–01 Local Authorities

(Executive

Arrangements)

(Access to

Information)

(England)

Regulations 2000

Prayer to annul

Contents

63

Not Contents

116

Labour 15 February 2001

Lord Cope of

Berkeley

(Conservative)

2000–01 Political Parties,

Elections and

Referendums Act

2000

(Disapplication of

Part IV for

Northern Ireland

Parties, etc.)

Order 2001

Amendment to

motion of

approval, to

regret

Contents

112

Not Contents

154

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 41

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 20 March 2001

Baroness Miller of

Hendon

(Conservative)

2000–01 Weights and

Measures

(Metrication

Amendments)

Regulations 2001

Prayer to annul

Contents

76

Not Contents

115

Labour 23 October 2001

Lord Kingsland

(Conservative)

2001–02 Financial Services

and Markets

Tribunal Rules

2001

Motion to

withdraw rules

Contents

129

Not Contents

140

Labour 19 November

2001

Lord McNally

(Liberal

Democrat)

2001–02 Human Rights

Act 1998

(Designated

Derogation)

Order 2001

Amendment to

motion of

approval, to

decline

Contents

69

Not Contents

148

Labour 29 November

2001

Lord Kingsland

(Conservative)

2001–02 Damages

(Personal Injury)

Order 2001

Motion to revoke

Contents

43

Not Contents

106

Labour 15 May 2002

Countess of Mar

(Crossbench)

2001–02 TSE (England)

Regulations 2002

Prayer to annul

and

amendment138

Contents

95

Not Contents

16

138 The Countess of Mar (Crossbench) moved a prayer to annul. Lord Livsey of Talgarth (Liberal Democrat)

moved an amendment to make it non-fatal. Lord Whitty (Minister) moved a technical amendment to the

amendment. The House agreed the amendment to amendment on division, then agreed to the motion as

amended.

42 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 24 July 2002

Lord McIntosh of

Haringey

(Labour)

2002–03 Fixed-term

Employees

(Prevention of

Less Favourable

Treatment)

Regulations 2002

Motion to

approve139

Contents 13

Not contents 2

No quorum

Labour 27 January 2003

Baroness Blatch

(Conservative)

2002–03 Education Act

2002

(Modification of

Provisions)

(No. 2) (England)

Regulations 2002

Prayer to annul

Contents

70

Not Contents

130

Labour 11 February 2003

Lord Smith of

Clifton

(Liberal

Democrat)

2002–03 Strategic

Investment and

Regeneration of

Sites (Northern

Ireland) Order

2003

Amendment to

motion of

approval, to

regret

Contents

50

Not Contents

134

Labour 17 June 2003

Lord Lester of

Herne Hill

(Liberal

Democrat)

2002–03 Employment

Equality (Sexual

Orientation)

Regulations 2003

Motion to

withdraw moved

before motion to

approve

Contents

50

Not Contents

85

139 During the vote on the motion by Lord McIntosh of Haringey there was not quorum in the Chamber, the

division is therefore not included in Tables 1 and 2.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 43

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 30 June 2003

Earl Howe

(Conservative)

2002–03 Food

Supplements

(England)

Regulations 2003

Motion to revoke

Contents

132

Not Contents

79

Government

defeat

Labour 12 November

2003

Lord Hodgson of

Astley Abbotts

(Conservative)

2002–03 Misuse of Drugs

Act 1971

(Modification)

(No. 2) Order

2003

Amendment to

motion for

approval, to

regret

Contents

78

Not Contents

61

Government

defeat

Labour 12 November

2003

Baroness Scotland

of Asthal (Labour)

2002–03 Misuse of Drugs

Act 1971

(Modification)

(No. 2) Order

2003

Whether the

original Motion,

as amended, shall

be agreed to140

Content 63

Not content 37

Labour

13 November

2003

Earl of Northesk

(Conservative)

2002–03 Regulation of

Investigatory

Powers

(Communications

Data) Order

2003

Amendment to

motion for

approval

Contents

92

Not Contents

108

140 Following the Government defeat on Lord Hodgson of Astley Abbotts amendment a further division was held

on whether the original motion, as amended by Lord Hodgson’s amendment, be agreed. This was passed but has

not been included in Tables 1 and 2, as the motion included identical wording to the original division.

44 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 13 November

2003

Lord Phillips of

Sudbury (Liberal

Democrat)

2002–03 Regulation of

Investigatory

Powers

(Communications

Data) Order

2003

Amendment to

motion for

approval

Contents

126

Not Contents

99

Government

defeat

Labour 13 November

2003

Baroness Blatch

(Conservative)

2002–03 Regulation of

Investigatory

Powers

(Communications

Data) Order

2003

Amendment to

motion for

approval

Contents

120

Not Contents

98

Government

defeat

Labour 16 December

2003

Lord Goodhart

(Liberal

Democrat)

2003–04 Extradition Act

2003

(Designation of

Part 2

Territories)

Order 2003

Motion to

withdraw moved

after motion to

approve

Contents

50

Not Contents

120

Labour 11 March 2004

Lord Holme of

Cheltenham

(Liberal

Democrat)

2003–04 Anti-terrorism,

Crime and

Security Act

2001

(Continuance in

Force of Section

21 to 23) Order

2004

Amendment to

motion for

approval

Contents

44

Not Contents

106

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 45

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 11 March 2004

Lord Laird

(Crossbench)

2003–04 Police (Northern

Ireland) Act 2000

(Renewal of

Temporary

Provisions)

Order 2004

Amendment to

motion of

approval, to

decline

Contents

45

Not Contents

134

Labour 8 June 2004

Lord Redesdale

(Liberal

Democrat)

2003–04 Guidance issued

under Section

182 of the

Licensing Act

2003 and

Guidance to

Police Officers

on the Operation

of Closure

Powers in Part 8

of the Licensing

Act 2003

Motion of regret

after motion to

approve

Contents

56

Not Contents

71

Labour 7 July 2004

Viscount Astor

(Conservative)

2003–04 Horse Passport

(England)

Regulations 2004

Prayer to annul

Contents

13

Not Contents

40

Labour 14 December

2004

Lord Thomas of

Gresford

(Liberal

Democrat)

2004–05 Criminal Justice

Act 2003

(Categories of

Offences) Order

2004

Amendment to

motion, to

reconsider

Contents

42

Not Contents

90

Labour 22 March 2005

Lord Glentoran

(Conservative)

2004–05 Higher Education

(Northern

Ireland) Order

2005

Amendment to

motion, to regret

Contents

168

Not Contents

150

Government

defeat

46 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 14 November

2005

Viscount Astor

(Conservative)

2005–06 Licensing Act

2003 (Second

Appointed Day)

Order 2005

Motion to

withdraw and

replace

Contents

130

Not Contents

97

Government

defeat

Labour 15 February 2006

Lord Thomas of

Gresford

(Liberal

Democrat)

2005–06 Prevention of

Terrorism Act

2005

(Continuance in

Force of Sections

1 to 9) Order

2006

Amendment to

motion of

approval, to

regret

Contents

34

Not Contents

81

Labour 26 April 2006

Lord Smith of

Clifton

(Liberal

Democrat)

2005–06 Local

Government

(Boundaries)

(Northern

Ireland) Order

2006

Amendment to

motion of

approval, to

regret

Contents

57

Not Contents

83

Labour 3 May 2006

Lord Hunt of

Wirral

(Conservative)

2005–06 Transfer of

Undertakings

(Protection of

Employment)

Regulations 2006

Motion to revoke

Contents

77

Not Contents

79

Labour 10 July 2006

Lord Rogan

(Non-Affiliated)

2005–06 Education

(Northern

Ireland) Order

2006

Amendment to

motion of

approval, to

decline to

approve

Contents

97

Not contents

172

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 47

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 7 November 2006

Lord Smith of

Clifton (Liberal

Democrat)

2005–06 Rates

(Amendment)

(Northern

Ireland) Order

2006

Amendment to

motion, to

decline to

approve

Contents

62

Not contents

124

Labour 11 December

2006

Lord Trimble

(Conservative)

2006–07 Water and

Sewerage

Services

(Northern

Ireland) Order

2006

Amendment to

motion, to

decline to

approve

Contents

83

Not contents

158

Labour 9 January 2007

Lord Morrow

(Non-Affiliated)

2006–07 Equality Act

(Sexual

Orientation)

Regulations

(Northern

Ireland) 2006

Motion to annul

Contents

68

Not contents

199

Labour 5 March 2007

Lord Dholakia

(Liberal

Democrat)

2006–07 Prevention of

Terrorism Act

2005

(Continuance in

force of Sections

1-9) Order 2007

Amendment to

motion, to regret

Contents

96

Not contents

141

Labour 21 March 2007

Baroness

O’Cathain

(Conservative)

2006–07 Equality Act

(Sexual

Orientation)

Regulations 2007

Amendment to

motion, to

decline to

approve

Contents

122

Not contents

168

48 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 27 March 2007

Lord Trimble

(Conservative)

2006–07 Police (Northern

Ireland) Act 2000

(Renewal of

Temporary

Provisions)

Order 2007

Amendment to

motion, to

decline to

approve

Contents

97

Not contents

141

Labour 28 March 2007

Lord Clement-

Jones

(Liberal

Democrat)

2006–07 Gambling

(Geographical

Distribution of

Casino Premises

Licences) Order

2007

Amendment to

motion, to

decline to

approve

Contents

123

Not contents

120

Government

defeat

Labour 19 June 2007

Lord Bradshaw

(Liberal

Democrat)

2006–07 Community

Drivers’ Hours

and Recording

Equipment

Regulations 2007

Amendment to

motion, to

decline to

approve

Contents

57

Not contents

111

Labour 18 July 2007

Baroness Morris

of Bolton

(Conservative)

2006–07 Children Act

2004 Information

Database

(England)

Regulations 2007

Amendment to

motion, to regret

Contents

46

Not contents

79

Labour 18 July 2007

Baroness

Walmsley (Liberal

Democrat)

2006–07 Children Act

2004 Information

Database

(England)

Regulations 2007

Amendment to

motion, to regret

Contents

38141

Not contents

77

141 The Tellers for the Contents reported 38 votes; the Clerks recorded 39 names.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 49

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 18 July 2007

Baroness Hanham

(Conservative)

2006–07 Home

Information Pack

(No 2)

Regulations 2007

and Housing Act

2004

(Commencement

No 8) (England

and Wales)

Order 2007

Motion to revoke

Contents

186

Not contents

160

Government

defeat

Labour 4 March 2008

Lord Wade of

Chorlton

(Conservative)

2007–08 Cheshire

(Structural

Changes) Order

2008

Amendment to

motion, to not

proceed without

consultation

Contents

72

Not contents

83

Labour 30 June 2008

Lord Morrow

(Non-Affiliated)

2007–08 Sexual Offences

(Northern

Ireland) Order

2008

Amendment to

motion, to

decline to

approve

Contents

66

Not contents

146

Labour 10 November

2008

Baroness Thomas

of Winchester

(Liberal

Democrat)

2007–08 Social Security

(Miscellaneous

Amendments)

(No. 4)

Regulations 2008

Motion to revoke

Contents

54

Not contents

84

Labour 25 November

2008

Baroness

Meacher

(Crossbench)

2007–08 Misuse of Drugs

Act 1971

(Amendment)

Order 2008

Amendment to

motion, to delay

implementation

Contents

64

Not contents

116

50 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 5 March 2009

Baroness Miller of

Chilthorne

Domer (Liberal

Democrat)

2008–09 Prevention of

Terrorism Act

2005

(Continuance in

force of Sections

1-9) Order 2009

Amendment to

motion for

approval, to

decline

Contents

48

Not contents

135

Labour 16 March 2009

Lord Tyler

(Liberal

Democrat)

2008–09 Parliamentary

Constituencies

(England)

(Amendment)

Order 2009

Amendment to

motion for

approval, to

decline

Contents

45

Not contents

185

Labour 18 March 2009

Earl Attlee

(Conservative)

2008–09 Non-Domestic

Rating

(Collection and

Enforcement)

(Local Lists)

(Amendment)

(England)

Regulations 2009

Motion to regret

Contents

77

Not contents

69

Government

defeat

Labour 24 March 2009

Baroness Neville-

Jones

(Conservative)

2008–09 Data Retention

(EC Directive)

Regulations 2009

Amendment to

motion, to regret

Contents

89

Not contents

93

Labour 11 May 2009

Baroness Thomas

of Winchester

(Liberal

Democrat)

2008–09 Housing Benefit

(Amendment)

Regulations 2009

Motion to regret

Contents

27

Not contents

58

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 51

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 13 July 2009

Baroness Hanham

(Conservative)

2008–09 Various Identity

Card Regulations

2009

Amendment to

motion, to

regret142

Content 157

Not content

98

Government

defeat

Labour 14 October 2009

Lord Bates

(Conservative)

2008–09 Non-Domestic

Rating

(Collection and

Enforcement)

(Local Lists)

(Amendment)

(England)

Regulations 2009

Motion to regret

Contents

72

Not contents

66

Government

defeat

Labour 7 December 2009

Earl of Onslow

(Conservative)

2009–10 Proceeds of

Crime Act 2002

(References to

Financial

Investigators)

(Amendment)

Order 2009

Motion to note

with concern

Contents

182

Not contents

118

Government

defeat

Labour 1 February 2010

Lord Scott of

Foscote

(Crossbench)

2009–10 Pharmacy Order

2010

Amendment to

motion, to regret

Contents

21

Not contents

44

Labour 3 March 2010

Baroness

Hamwee (Liberal

Democrat)

2009–10 Prevention of

Terrorism Act

2005

(Continuance in

force of Sections

1-9) Order 2006

Amendment to

motion of

approval, to

decline

Contents

49

Not contents

57

142 Baroness Hanham moved a general motion relating to five statutory instruments, rather than an amendment to

the motion to approve a specific SI. For this reason it has been categorised as a vote on the Government’s policy

on identity cards in general, rather than on a vote on a piece of this legislation. It therefore does not appear in

Tables 1–4.

52 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 3 March 2010

Lord Lloyd of

Berwick

(Crossbench)

2009–10 Prevention of

Terrorism Act

2005

(Continuance in

force of Sections

1-9) Order 2006

Amendment to

motion, to regret

Contents

50

Not contents

43

Government

defeat

Labour 10 March 2010

Baroness Tonge

(Liberal

Democrat)

2009–10 Royal Parks and

Other Open

Spaces

(Amendment) etc

Regulations 2010

Motion that the

draft regulations

not be made

Contents

48

Not contents

71

Labour 10 March 2010

Lord Howard of

Rising

(Conservative)

2009–10 Royal Parks and

Other Open

Spaces

(Amendment) etc

Regulations 2010

Amendment to

motion, to regret

Contents

136

Not contents

71

Government

defeat

Labour 22 March 2010

Lord Tope

(Liberal

Democrat)

2009–10 Norwich and

Norfolk

(Structural

Changes) Order

2010

Amendment to

motion for

approval, to

decline

Contents

54

Not contents

118

Labour 22 March 2010

Baroness Butler-

Sloss

(Crossbench)

2009–10 Norwich and

Norfolk

(Structural

Changes) Order

2010

Amendment to

motion, to regret

Contents

169

Not contents

110

Government

defeat

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 53

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Labour 22 March 2010

Lord Tope

(Liberal

Democrat)

2009–10 Exeter and

Devon

(Structural

Changes) Order

2010

Amendment to

motion for

approval, to

decline

Contents

53

Not contents

110

Conservative/

Liberal Democrat

19 July 2010

Lord Davies of

Oldham (Labour)

2010–12 Child Trust

Funds

(Amendment No

3) Regulations

2010

Amendment to

motion, to regret

Contents

154

Not contents

189

Conservative/

Liberal Democrat

14 December

2010

Lord Triesman

(Labour)

2010–12 Higher Education

(Basic Amount)

(England)

Regulations 2010

Amendment to

motion, to

replace motion

to approve with

motion to regret

Contents

215

Not contents

283

Conservative/Liberal

Democrat

14 December

2010

Lord Triesman

(Labour)

2010–12 Amendment, to

replace motion

to approve with

motion to

regret143

Content 200

Not Content

273

Conservative/Liberal

Democrat

7 March 2011

Lord Touhig

(Labour)

2010–12 Social Fund

Maternity Grant

Amendment

Regulations 2011

Motion to regret

and to note with

concern

Contents

112

Not contents

149

143 The initial motion from Lord Henley, which was the subject of Lord Triesman’s amendment, was a resolution

made under section 24 of the Higher Education Act 2004 to put into effect draft regulations laid in a Command

Paper—rather than a SI laid before the House in the usual manner. The House of Lords Journal Office and

Delegated Legislation Office classed this as a division on an amendment to a general motion, rather than a division

directly on a statutory instrument. The division is therefore excluded from Tables 1 and 2.

54 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative/Liberal

Democrat

15 March 2011

Lord Hunt of

Kings Heath

(Labour)

2010–12 Transfer of

Functions

(Dormant

Accounts) Order

2010

Motion to regret

Contents

102

Not contents

159

Conservative/Liberal

Democrat

10 May 2011

Countess of Mar

(Crossbench)

2010–12 Jobseeker’s

Allowance

(Mandatory

Work Activity

Scheme)

Regulations 2011

Motion of regret

Contents

122

Not contents

155

Conservative/Liberal

Democrat

6 September 2011

Lord Waddington

(Conservative)

2010–12 Equality Act 2010

(Specific Duties)

Regulations

Amendment to

motion, to regret

Contents

126

Not contents

258

Conservative/Liberal

Democrat

6 September 2011

Lord Low of

Dalston

(Crossbench)

2010–12 Equality Act 2010

(Specific Duties)

Regulations

Amendment to

motion, to regret

and to call upon

government to

withdraw

Contents

166

Not contents

178

Conservative/Liberal

Democrat

28 March 2012

Lord Young of

Norwood Green

(Labour)

2010–12 Unfair Dismissal

and Statement of

Reasons for

Dismissal

(Variation of

Qualifying

Period) Order

2012

Amendment to

motion, to regret

Contents

125

Not contents

193

Conservative/Liberal

Democrat

25 July 2012

Baroness Royall

of Blaisdon

(Labour)

2012–13

Criminal Injuries

Compensation

Scheme 2012

Amendment to

motion, to regret

Contents

117

Not contents

171

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 55

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative/Liberal

Democrat

16 October 2012

Lord Hunt of

Kings Heath

(Labour)

2012–13

National Health

Service (Clinical

Commissioning

Groups)

Regulations 2012

Motion of regret

Contents 128

Not contents

161

Conservative/Liberal

Democrat

3 December 2012

Lord Bach

(Labour)

2012–13

Legal Aid,

Sentencing and

Punishment of

Offenders Act

2012

(Amendment of

Schedule 1)

Order 2012

Amendment to

the motion for

approval, to

decline

Contents 201

Not contents

191

Government

defeat

Conservative/Liberal

Democrat

5 February 2013

Lord Collins of

Highbury

(Labour)

2012–13

NHS Bodies and

Local Authorities

(Partnership

Arrangements,

Care Trusts,

Public Health and

Local

Healthwatch)

Regulations 2012

Motion to regret

Contents 113

Not contents

145

Conservative/Liberal

Democrat

13 February 2013

Baroness

Sherlock

(Labour)

2012–13

Universal Credit

Regulations 2013

Amendment to

the motion, to

regret

Contents 169

Not contents

239

Conservative/Liberal

Democrat

27 March 2013

Lord Bach

(Labour)

2012–13

Legal Aid,

Sentencing and

Punishment of

Offenders Act

2012

(Amendment of

Schedule 1)

Order 2013

Amendment to

the motion, to

regret

Contents 166

Not contents

161

Government

defeat

56 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative/Liberal

Democrat

27 March 2013

Baroness Grey-

Thompson

(Crossbench)

2012–13

Civil Legal Aid

(Procedure)

Regulations 2012

Motion to regret

Contents 163

Not contents

148

Government

defeat

Conservative/Liberal

Democrat

27 March 2013

Baroness Scotland

of Asthal (Labour)

2012–13

Civil Legal Aid

(Procedure)

Regulations 2012

Motion to regret

Contents 156

Not contents

140144

Government

defeat

Conservative/Liberal

Democrat

24 April 2013

Lord Hunt of

Kings Heath

(Labour)

2012–13

National Health

Service

(Procurement,

Patient Choice

and Competition)

(No. 2)

Regulations 2013

Motion to annul

Contents 146

Not contents

254

Conservative/Liberal

Democrat

3 April 2014

Baroness

Sherlock (Labour)

2013–14 Housing Benefit

(Transitional

Provisions)

(Amendment)

Regulations 2014

Motion of regret

Content 173

Not contents

188

Conservative/Liberal

Democrat

12 May 2014

Baroness Smith of

Basildon (Labour)

2013–14

Misuse of Drugs

Act 1971

(Amendment)

(No. 2) Order

2014

Amendment to

the motion, to

regret

Contents 125

Not contents

216

Conservative/Liberal

Democrat

9 December 2014

Lord Lipsey

(Labour)

2014–15

Care and

Support

(Deferred

Payment)

Regulations 2014

Motion of regret

Contents 54

Not contents

147

144 The Tellers for the Not contents reported 140 votes; the Clerks recorded 139 names.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 57

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative/Liberal

Democrat

24 February 2015

Lord Deben

(Conservative)

2014–15

Human

Fertilisation and

Embryology

(Mitochondrial

Donation)

Regulations 2015

Amendment to

motion of

approval, to

decline and

establish a joint

committee

Contents 48

Not contents

280

Conservative 13 July 2015

Lord German

(Liberal

Democrat)

2015–16 Universal Credit

(Waiting Days)

(Amendment)

Regulations 2015

Motion calling on

HMG to remove

the housing

element of the

Universal Credit

(Waiting Days)

(Amendment)

Regulations 2015

Contents 69

Not Contents

132

Conservative 13 July 2015

Baroness

Sherlock (Labour)

2015–16 Universal Credit

(Waiting Days)

(Amendment)

Regulations 2015

Motion to delay

the enactment145

Contents 135

Not Contents

124

Government

defeat

Conservative 14 October 2015

Lord Beecham

(Labour)

2015–16 Prosecution of

Offences Act

1985 (Criminal

Courts Charge)

Regulations 2015

Motion to regret

Contents 132

Not Contents

100

Government

defeat

145 Baroness Sherlock moved a motion to “That this House calls on Her Majesty’s Government, in the light of the

Social Security Advisory Committee’s Report of June 2015, to delay the enactment of the Universal Credit

(Waiting Days) (Amendment) Regulations 2015 until Universal Credit is fully rolled out”. As this instrument was a

negative instrument it would have required a successful prayer asking the Queen to annul it in order for it to be a

fatal motion.

58 House of Lords Library Note I Delegated Legislation in the House of Lords since 1997

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative 26 October 2015

Baroness

Manzoor (Liberal

Democrat)

2015–16 Tax Credits

(Income

Thresholds and

Determination of

Rates)

(Amendment)

Regulations 2015

Amendment to

motion to

approve, to

decline

Contents 99

Not Contents

310

Conservative 26 October 2015

Baroness

Meacher

(Crossbench)

2015–16 Tax Credits

(Income

Thresholds and

Determination of

Rates)

(Amendment)

Regulations 2015

Amendment to

the motion to

approve, to

decline to

consider146

Delayed

Contents 307

Not Contents 277

Government defeat

Conservative 26 October 2015

Baroness Hollis of

Heigham (Labour)

2015–16 Tax Credits

(Income

Thresholds and

Determination of

Rates)

(Amendment)

Regulations 2015

Amendment to

the motion to

approve to

decline to

consider

Delayed

Contents 289

Not Contents 272

Government defeat

Conservative 27 October 2015

Lord Tyler

(Liberal

Democrat)

2015–16 Electoral

Registration and

Administration

Act 2013

(Transitional

Provisions)

Order 2015

Motion to Annul

Contents 246

Not Contents

257

146 The amendment to the motion declined to consider the draft regulations until the Government laid a report

before the House, detailing their response to the analysis of the draft regulations by the Institute for Fiscal Studies,

and considering possible mitigating action. There has been some debate about whether this constituted a fatal or

non-fatal amendment. For further discussion please see section 2.1.

House of Lords Library Note I Delegated Legislation in the House of Lords since 1997 59

Party in office Date and Peer

moving motion

Parliamentary

Session

Title of

instrument and

nature of

division

Divisions

Fatal

motion

Non-fatal

motion

Conservative 27 October 2015

Lord Kennedy of

Southwark

(Labour)

2015–16 Electoral

Registration and

Administration

Act 2013

(Transitional

Provisions)

Order 2015

Amendment to

the Motion to

Annul to insert

extra wording 147

Contents 267

Not Contents

257

Conservative 27 October 2015

Baroness

Hamwee (Liberal

Democrat)

2015–16 Asylum Support

(Amendment No.

3) Regulations

2015

Motion to Annul

Contents 68

Not Contents

194

Conservative 16 December

2015

Lord McKenzie of

Luton (Labour)

2015–16 Energy

Performance of

Buildings

(England and

Wales)

(Amendment)

(No. 2)

Regulations 2015

Motion to regret

Contents 17

Not contents

97

147 Lord Kennedy of Southwark moved an amendment to Lord Tyler’s motion to annul to insert “on the grounds

that it goes against the advice of the Electoral Commission”. Although the motion was passed, it was not a vote on

the statutory instrument itself and is therefore not included in Tables 1, 2, 3 and 4.

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are available to discuss the contents of the Notes with the Members and their staff but cannot advise members of the

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